North Carolina State Board of Education v. Swann Statement as to Jurisdiction

    In The

Supreme Court of the United States
OCTOBER TERM , 1970 

No________

NORTH CAROLINA STATE BOARD OF EDUCATION; 
DR. A. CRAIG PHILLIPS, Superintendent of Public Instruc­
tion; HONORABLE ROBERT W. SCOTT, Governor of the 
State of North Carolina; HONORABLE A. C. DAVIS. Con­
troller of the State Board of Education; HONORABLE W IL­
LIAM  K. McLEAN, Judge of the Superior Court of Meck­
lenburg County, et ah,

Appellants,
v.

JAMES E. SWANN, et al.,
Appellees.

APPEAL FROM THE DISTRICT COURT OF THE 
UNITED STATES FOR THE WESTERN DISTRICT 

OF NORTH CAROLINA

STATEMENT AS TO JURISDICTION

ROBERT B. MORGAN 
Attorney General of the 
State of North Carolina

Ralph Moody
Deputy Attorney General of the 
State of North Carolina

Andrew A. Vanore, Jr.
Assistant Attorney General of the 
State of North Carolina

P. O. Box 629 
Justice Building 
Raleigh, North Carolina 27602 
Telephone: 829-3377



INDEX
STATEMENT AS TO JURISDICTION.........................................  1

OPINION BELOW ..........................................................................  1

JURISDICTION ................................................................................ 2

QUESTIONS PRESENTED ........................................................... 4

STATUTES AND CONSTITUTIONAL PROVISIONS
INVOLVED ................................................................................ 4

CONCLUSION .................................................   13

TABLE OF CASES

Alexander v. Holmes County Board of Education,
396 U. S. 19, 90 S. Ct. 29 ........................................................  10

Atlantic Coastline Railroad v. Brotherhood of Locomotive 
Engineers, No. 477, October Term, 1969, Opinion filed 
June 8, 1970 .............................................................................. 13

Bell v. School City of Gary, Indiana, 324 F. 2d 209, cert.
den. 377 U. S. 924 .................................................................. 8

Blue v. Durham Public School District, 95 F. Supp. 441 ..........  12
Board of Education of Oklahoma City Public Schools v.

Dowell, 375 F. 2d 158, cert. den. 387 U. S. 931 ..................  8

Board of Public Instruction of Duval County, Florida,
v. Braxton, 402 F. 2d 900 ....................................................... 8

Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686,
98 L. ed. 873 .............................................................................  7

Brown v. Board of Education of Topeka, 349 U. S. 294,
99 L. ed. 1083, 75 S. Ct. 753 .....................................................  7

Brown v. Charlotte-Mecklenburg Board of Education,
267 N. C. 740, 743, 149 S. E. 2d 10 .......................................  11

Bradley v. School Board of Richmond, 345 F. 2d 310,
315, 316 .....................................................................................  7

i



Constantian v. Anson County, 244 N, C. 221, 93 S. E. 2d 163 .... 12

Covington v. Edwards, 264 F. 2d 780 (CCA-4) .......................... 13

Deal v. Cincinnati Board of Education, 369 F. 2d 55,
cert. den. 389 U. S. 847 ........................................................... 8

Department of Employment v. United States, 385 U. S. 355,
87 S. Ct. 464, 17 L. ed. 2d 414 ................................................  3

Dilday v. Board of Education, 267 N. C. 438, 148
S. E. 2d 513 ..............................................................................  12

Down v. Board of Education of Kansas City, 336 F. 2d
988, cert. den. 380 U. S. 914 ................................................. 8

Florida Lime & Avocado Growers, Inc. v. Jacobsen,
362 U. S. 73, 8 S. Ct. 568, 4 L. ed. 2d 568 .......................... 2

Grave v. Board of Education of North Little Rock, Arkansas,
School District, 299 F. Supp. 843 ...........................................  8

Huff v. Board of Education, 259 N. C. 75, 130 S. E. 2d 26 ........  11

In Re Hays, 261 N. C. 616, 135 S. E. 2d 645 ................................ 12

Jeffers v. Whitley, 165 F. Supp. 951 ............................................. 13

McKissick v. Durham City Board of Education,
176 F. Supp. 3 ........................................................................  13

Mitchell v. Donovan, No. 726, October Term, 1969,
Opinion filed June 15, 1970 ................................................... 13

Northcross v. Board of Education of Memphis,
_____U. S---------- - 25 L. ed. 2d 246, 90 S. Ct........... ................  10

Palmetto Fire Insurance Company v. Conn, 272 U. S. 205,
47 S. Ct. 88, 71 L. ed. 243 ....................................................... 3

Sparrow v. Gill, 304 F. Supp. 86 .................................................  11

United States v. Jefferson County Board of Education,
372 F. 2d 836, 879 ..................................................................  8

Zemel v. Rusk, 381 U. S. 1, 85 S. Ct. 1271, 14 L. ed. 2d 179 ....... 3

ii



STATUTES

General Statutes of North Carolina, §115-176.1 .............. 2, 3, 4, 5

General Statutes of North Carolina, §115-180 ..........................  10

General Statutes of North Carolina, §115-181 ..........................  11

General Statutes of North Carolina, Chapter 115, Article 22

28 USC 1253 ...............................................................    2

42 USC 2000c .................................................................................  5, 6

42 USC 2000C-6 .......................  5

APPENDIX .......................................................................................  14

FINAL JUDGMENT ........................................................................  15

OPINION OF 3-JUDGE COURT ..................................................  16

DESIGNATION OF 3-JUDGE COURT .....................................  30

NOTIFICATION AND REQUEST FOR DESIGNATION
OF 3-JUDGE COURT .........   32

SUPPLEMENTAL COMPLAINT ..................................................  36

ORDER TO ADD DEFENDANTS AND TO FILE
SUPPLEMENTAL COMPLAINT .........................................  50

MOTION FOR SUPPLEMENTAL COMPLAINT AND
ADDITIONAL DEFENDANTS .............................................  51

ANSWER TO SUPPLEMENTAL COMPLAINT ........................ 55

MOTION FOR FURTHER RELIEF AND ADDITIONAL
DEFENDANTS ........................................................................ 59

ORDER ALLOWING ADDITIONAL DEFENDANTS ..............  65

ANSWER TO MOTION TO ADD ADDITIONAL
DEFENDANTS AND FOR FURTHER RELIEF ..............  69

DEPOSITION OF JAMES H. CARSON, JR................................  76

iii



In The

Supreme Court of the United States
OCTOBER TERM , 1970

No.

NORTH CAROLINA STATE BOARD OF EDUCATION; 
DR. A. CRAIG PHILLIPS, Superintendent of Public Instruc­
tion; HONORABLE ROBERT W. SCOTT, Governor of the 
State of North Carolina; HONORABLE A. C. DAVIS, Con­
troller of the State Board of Education; HONORABLE W IL­
LIAM  K. McLEAN, Judge of the Superior Court of Meck­
lenburg County, et ah,

Appellants,
v.

JAMES E. SWANN, et ah,
Appellees.

APPEAL FROM THE DISTRICT COURT OF THE 
UNITED STATES FOR THE WESTERN DISTRICT 

OF NORTH CAROLINA

STATEMENT AS TO JURISDICTION
The appellants, pursuant to United States Supreme Court 

Rules 13 and 15, file this statement as to jurisdiction, setting 
forth the basis upon which it is contended that the Supreme 
Court of the United States has jurisdiction on a direct appeal 
from an opinion and judgment of a 3-judge federal court to 
review the final judgment in question, and, further, that this 
Court should exercise such jurisdiction in this case.

OPINION BELOW
The 3-Judge Federal District Court for the Western Dis­

trict of North Carolina filed its written opinion on April 29, 
1970; this opinion is not yet reported. A copy of the opinion 
is attached to the Jurisdictional Statement and appears on 
p. 16 of the Appendix attached hereto.



2

JURISDICTION
The appeal herein is from a judgment decided by a 8- 

judge federal court organized in the Western District of North 
Carolina and filed in the Office of the Clerk of the Court for 
the Western District of North Carolina on June 22, 1970, 
the same being a final judgment. In this judgment the 3- 
Judge Federal Court held unconstitutional and invalid a por­
tion of a statute of North Carolina (Section 115-176.1 of 
the General Statutes of North Carolina-—1969 Cumulative 
Supplement to Volume 3A) which said portion reads as 
follows:

“No student shall be assigned or compelled to attend 
any school on account of race, creed, color or national 
origin, or for the purpose of creating balance or ratio 
of race, religion or national origins. Involuntary busing 
of students in contravention of this article is prohibited, 
and pubilc funds shall not be used for any such busing.”

The 3-Judge Federal District Court further held that except 
for the portion above quoted the State statute was con­
stitutional and valid.

The complete statute appears on p. 19 of the Appendix 
attached hereto.

The final judgment signed by the 3-Judge Federal Court 
declaring this portion of the State statute unconstitutional 
and restraining any action to enforce same on the part of 
the appellants is set forth on p. 15 of the Appendix attached 
hereto.

The Supreme Court of the United States has jurisdiction 
to review by direct appeal the opinion and judgment of the 
3-Judge District Court of the United States herein complained 
of by virtue of the provisions of 28 USC 1253. This is also 
a question that arises under the provisions of the Constitution 
of the United States.

The following decisions sustain the jurisdiction of the Su­
preme Court of the United States to review this opinion and 
judgment on direct appeal in this case: FLORIDA LIME &



3

AVOCADO GROWERS, INC. v. JACOBSEN, 362 U. S. 73, 
8 S. Ct. 568, 4 L„ ed. 2d 568; ZEMEL v. RUSK, 381 U. C. 1, 85 
S. Ct. 1271, 14 L. ed. 2d 179; PALMETTO FIRE INS. CO. v. 
CONN, 272 U. S. 205, 47 S. Ct. 88, 71 L. ed. 243; DEPART­
M ENT OF EM PLOYMENT v. UNITED STATES, 385 U. S. 
355, 87 S. Ct. 464, 17 L. ed. 2d 414.

It is to be noted that the 3-Judge Federal Court granted an 
injunction against all of the State officers restraining them 
from carrying out the provisions of the statute above cited. 
This would seem to bring the case directly in line with the 
decisions where this Court will take jurisdiction and hear 
such an appeal.

It should be emphasized that the appellants do not ques­
tion the organization of the 3-Judge Federal Court. The ap­
pellants concede that the constitutionality of the State statute 
was a proper case which requires a 3-judge court to pass upon 
the constitutional and injunctive issue. It is further conceded 
that the 3-Judge Federal Court was properly organized under 
a proper order, and, therefore, the jurisdiction of the 3-Judge 
Court to hear the case is not questioned.

The portion of Sec. 115-176.1 (1969 Supplement to Vol­
ume 3A) of the statutes of North Carolina declared to be 
unconstitutional consists of two sentences in said statute which 
we again quote, as follows:

“ No student shall be assigned or compelled to attend any 
school on account of race, creed, color or national origin, 
or for the purpose of creating balance or ratio of race, 
religion or national origins. Involuntary busing of students 
in contravention of this article is prohibited, and public 
funds shall not be used for such busing.”

The 3-Judge Federal Court construed these two sentences 
to mean that they prohibited assignment by race and would 
prevent school boards from altering existing dual systems. Ap­
parently the Court construed the word “ balance” as prohi­
biting a school board from establishing the so-called Unitary 
System, and the Court said this violated the equal protection 
clause of the Fourteenth Amendment. Aside from the con­
stitutional implications involved in the statute, we think the



Court has incorrectly construed the language of the statute 
since the 3-Judge Court evidently thought that the language 
substantially prohibited all busing.

QUESTIONS PRESENTED
THE 3-JUDGE FEDERAL DISTRICT COURT FOR THE 
WESTERN DISTRICT OF NORTH CAROLINA ERRED, 
AS FOLLOWS:

I. IN  HOLDING AND CONCLUDING THAT THE 
NORTH CAROLINA STATUTE ABOVE QUOT­
ED VIOLATED THE EQUAL PROTECTION 
CLAUSE OF THE FOURTEENTH AM END­
MENT.

II. IN  ERRONEOUSLY CONSTRUING THE WORD 
“BALANCE” AS USED IN THE NORTH CARO­
LINA STATUTE TO BE A PROHIBITION 
AGAINST RACIAL ADJUSTMENT IN THE OR­
GANIZATION OF A PUBLIC SCHOOL SYSTEM 
AND IN CONSTRUING THE STATUTE TO 
MEAN THAT BUSING SHOULD NOT BE RE­
SORTED TO BUT AS FLATLY PROHIBITING 
BUSING.

III. IN  HOLDING IN SUBSTANCE THAT THE 
STATE HAS NO CONTROL OVER THE EXPEN­
DITURE OF ITS FUNDS, BUT, TO THE CON­
TRARY, MUST EXPEND ITS FUNDS ACCORD­
ING TO THE DICTATION OF THE FEDERAL 
COURT.

IV. IN FAILING TO DISMISS THE ACTION AS 
AGAINST THE STATE OFFICIALS WHO ARE 
NOT CONCERNED W ITH THE BUSING OF 
THE PUPILS WHICH IS PURELY THE FUNC­
TION OF THE LOCAL SCHOOL UNITS.

STATUTES AND CONSTITUTIONAL 
PROVISIONS INVOLVED

N.C.G.S. 115-176.1 (The portion of this statute as quoted 
above); Article 22 of Chapter 115 of the General Statutes of



5

North Carolina (Dealing with the rights and duties as to the 
busing of public school pupils).

Section 115-176.1 of the North Carolina 
General Statutes is constitutional

This portion of the statute simply prohibits compulsory at­
tendance or assignment of any pupil to a public school on 
account of race, creed, or national origin, for the express pur­
pose of creating a balance or ratio of race, religion or national 
origins. It also prohibits involuntary busing of students “ in 
contravention of this article” and provides that public funds 
shall not be used for such busing.

This is in line with the enactment of the Congress in the 
Civil Rights Act of 1964. In the definition of “ desegregation” 
in subsection (b) of 42 USC 2000c it is expressly said: 
“  ‘Desegregation’ shall not mean the assignment of students to 
public schools to overcome racial imbalance.” Likewise, in 42 
USC 2000c-6, it is provided in subsection (a) (2), as follows:

“Provided that nothing herein shall empower any official 
or court of the United States to issue any order seeking 
to achieve a racial balance in any school by requiring the 
transportation of pupils or students from one school to 
another or one school district to another in order to 
achieve such racial balance,”

Apparently Senator Humphrey, when this matter was be­
ing debated on the floor of the Senate, held an opinion quite 
contrary to the order of the Court in this matter. In 110 Con­
gressional Record 12717, we find the following:

“ Mr. Humphrey * * * I should like to make one further 
reference to the Gary case. This case makes it quite,clear 
that while the Constitution prohibits segregation, it does 
not require integration * * * . The bill does not attempt 
to integrate the schools but it does attempt to eliminate 
segregation in the schools * * * . The fact that there is 
a racial imbalance per se is not something which is un­
constitutional. That is why we have attempted to clarify 
it with the language in Section 4.”



6

It is submitted that the definition of “ desegregation” is on 
a par with the congressional definition, which is found in sub­
section (b) of 42 USC 2000c, which is as follows:

“ ‘Desegregation’ means the assignment of students to 
public schools and within such schools without regard to 
their race, religion, or national origin, but ‘desegregation’ 
shall not mean the assignment of students to public 
schools in order to overcome racial imbalance.”

If the first sentence of the State Statute is therefore un­
constitutional, then the Congressional Act is likewise uncons­
titutional and invalid. If this sentence is unconstitutional, then 
that portion of the State statute which forbids exclusion from 
a school on the basis of race is also uncontstitutional for these 
two statutory prohibitions are different statements of the 
same thing. The first of these provisions says to the school 
authorities that you cannot require a child because of his 
race to stay away from any given school. The second pro­
vision says to the school authorities you cannot require a 
child, because of his race, to enter any given school. The 
thrust of these two provisions is that school attendance based 
entirely on race is prohibited.

The holding of the 3-Judge Federal Court in this case should 
be scrutinized closely from a constitutional standpoint. What 
the District Court has done, as well as courts elsewhere, is 
simply to convert a civil right or civil liberty into a civil 
obligation analogous to the obligation of compulsory con­
scription for military purposes.

The whole scheme of busing pupils on a racial basis to re­
move a racial imbalance in a public school is not only a 
dictatorial exertion of power on the part of the judiciary but 
is a confusion between civil rights and civil obligations. It 
means that parents and pupils must submit to the judge's 
choice of the schools they shall attend based upon the color of 
their skin to accomplish a fictitious governmental purpose. It 
simply means that black people or white people are directed by 
judicial dictat to go to one school rather than to another. 
Judicial dictation or tyranny by an all-powerful government 
is not removed because it is done in the name of equality. In



7

other words, black people, or, for that matter, white people, 
are under a governmental obligation to associate with whom­
ever the government chooses because the government has 
decided to compel such association, and, therefore, the civil 
right to associate with whomsoever citizens choose to associate 
with is not a right but a governmental obligation. If this 
doctrine is pushed to the limits of its logic, then the Four­
teenth Amendment is constitutional authority for totalitar­
ianism for the government can deprive citizens of their rights 
or of their civil liberties if it merely deprives all citizens equal­
ly of such liberty or right.

If a black person enters a common carrier, such as a bus, 
he has a right to sit down at the front of the bus where the 
white people were formerly accustomed to having their seats, 
or he has a right to go to the back of the bus where the 
black people were formerly seated. He may choose any seat 
on the bus he desires, but if he decides to sit at the back of 
the bus, it is submitted that the bus driver has no constitu­
tional right to go back and seize him by the collar and drag 
him up to front of the bus. In this connection certain langu­
age in the case of BRADLEY v. SCHOOL BOARD OF 
RICHMOND, 345 F. 2d 310, 315, 316 (4th Cir. 1965), the 
Court dealt with the argument of certain black plaintiffs who 
wished their children to attend schools predominantly attend­
ed by black people. The Court said:

“ To that extent, they (plaintiffs) say that, under any 
freedom of choice system, the state ‘permits’ segregation 
if it does not deprive Negro parents of a right of choice. 
* * * There is nothing in the Constitution which prevents 
his voluntary association with others of his race or which 
would strike down any state law which permits such 
association. The present suggestion that a Negro’s right 
to be free from discrimination requires that the state 
deprive him of his volition is incongruous.”

There is nothing in Brown I or Brown II that supports 
the ruling of the Court (BROWN v. BOARD OF EDUCA­
TION, 347 U. S. 483, 74 S. Ct. 686, 98 L. ed. 873; BROWN 
v. BOARD OF EDUCATION OF TOPEKA, 349 U. S. 294,



8

99 L. ed. 1083, 75 S. Ct. 753) . It is noticeable, and, in fact, 
it should be emphasized, that Brown II is utterly silent as 
to redressing racial imbalance, but, to the contrary, deals with 
school districts and attendance areas. The Court said:

“ The burden rests upon the defendants to establish at 
such time as is necessary in the public interest and is con­
sistent with good faith compliance at the earliest prac­
ticable date. To that end, the courts may consider prob­
lems related to administration, arising from the physical 
condition of the school plant, the school transportation 
system, personnel, revision of school districts and at­
tendance areas into compact units to achieve a system of 
determining admission to the public schools on a nonraeial 
basis, and revision of local laws and regulations which 
may be necessary in solving the foregoing problems.”

It is submitted, therefore, that nondiscriminatory zoning or 
attendance areas related to the neighborhood school to which 
pupils are admitted on a nonraeial basis is the proper solution 
(see: BELL v. SCHOOL CITY OF GARY, INDIANA (CCA- 
7 ), 324 F. 2d 209, cert. den. 377 U. S. 924; UNITED STATES 
v. JEFFERSON COUNTY BOARD OF EDUCATION 
(CCA-5), 372 F.2d 836, 879; DEAL v. CINCINNATI BOARD 
OF EDUCATION, 369 F. 2d 55 (CCA-6), cert. den. 389 
U. S. 847; BOARD OF PUBLIC INSTRUCTION OF DUVAL 
COUNTY, FLORIDA v. BRAXTON (CCA-5), 402 F. 2d 
900; DOWN v. BOARD OF EDUCATION OF KANSAS 
CITY (CCA-10), 336 F. 2d 988, cert. den. 380 U. S. 914; 
BOARD OF EDUCATION OF OKLAHOMA CITY PUBLIC 
SCHOOLS v. DOWELL (CCA-10), 375 F. 2d 158, cert. den. 
387 U. S. 931; GRAVE v. BOARD OF EDUCATION OF 
NORTH LITTLE ROCK, ARKANSAS SCHOOL DIS­
TRICT, 299 F. Supp. 843).

The mention of the school transportation system in Brown 
II refers to the existing school transportation and not to the 
creation of new transportation systems to redress racial im­
balance.

An examination of the orders entered by District Judge 
McMillan, as shown in the Appendix to Petition for Certiorari



9

in No. 1713, October Term, 1969, already before this Court, 
will show that the District Judge has proposed to organize 
the public schools of Charlotte on the basis of mathematical 
ratios and not only do this but keep students in constant 
motion, moving from one school to another during the term, 
based upon computer calculations.

If what we have said as to the constitutionality of the 
first sentence in the judgment below is true, then the second 
sentence, which prohibits the expenditure of public funds for 
involuntary busing to redress racial imbalance, is also a valid 
exercise of State power.

The statute does not prohibit normal 
transportation for a public school sys­
tem. It only prohibits busing to relieve 
a racial imbalance or to provide public 
schools whose attendance is based on 
mathematical ratios.

It seems quite clear to us that the 3-Judge Court has mis­
construed the language of the statute. Among other things, 
the Court said:

“ Stated differently, a statute favoring the neighborhood 
school concept, freedom-of-choice plans, or both, can 
validly limit a school board’s choice of remedy only if 
the policy favored will not prevent the operation of a 
unitary system. That it may or may not depends upon 
the facts in a particular school system. The flaw in this 
legislation is its rigidity. As an expression of State policy, 
it is valid. To the extent that it may interfere with the 
board’s performance of its affirmative constitutional duty 
to establish a unitary system, it is invalid.”

What the Court is really saying is that students may be 
bused to rectify a racial imbalance or to conform to a math­
ematical ratio. In another part of the opinion the Court said:

“ The second and third sentences are unconstitutional. 
They plainly prohibit school boards from assigning, com­
pelling, or involuntarily busing students on account of 
race, or in order to racially ‘balance’ the school system.”



10

What the Court has really said is that there must be a 
unitary system without defining the unitary system. The Court 
has also said that students may be bused to establish racial 
balance, or, in other words, to correct a racial imbalance, 
which is the very thing prohibited by the Civil Rights Act 
of 1964. It seems strange that the Congress can prohibit this 
course of action and yet the State cannot prohibit the same 
course or type of action. The Court furthermore assumes that 
busing to redress racial imbalance is a constitutionally ap­
proved governmental objective and is a required constitution­
al obligation which has yet to be decided, and as far as 
this Court has gone is to say that a unitary system was one 
“ within which no person is to be effectively excluded from 
any school because of race or color.” (ALEXANDER v. 
HOLMES COUNTY BOARD OF EDUCATION, 396 U. S. 
19, 90 S. Ct. 29, quoted in concurring opinion in NORTH-
CROSS v. BOARD OF EDUCATION OF MEMPHIS, ____
U. S. ____ , 25 L. ed. 2d 246, 90 S. Ct. ------ ) Thus it will be
seen that the Court has exceeded that part of the definition 
already given.

The Court also overlooks the fact that neither the local 
board of education nor the State defendants are compelled 
to operate a transportation system.

In Section 115-180 of the General Statutes of North Caro­
lina it is said:

“ Each county board of education, and each city board of 
education is hereby authorized, but is not required, to 
acquire, own and operate school buses for the transport­
ation of pupils enrolled in the public schools of such 
county or city administrative unit and all persons em­
ployed in the operation of such schools within the limit­
ations set forth in this subchapter. Each such board may 
operate such buses to and from such of the schools within 
the county or city administrative unit, and in such num­
ber, as the board shall from time to time find practicable 
and appropriate for the safe, orderly and efficient trans­
portation of such pupils and employees of such schools.”



11

The State Board of Education has no authority over the 
transportation of pupils. In a portion of Section 115-181 of 
the General Statutes of North Carolina we find the following:

“  (a) The State Board of Education shall not have 
authority over or control of the transportation of pupils 
and employees upon any school bus owned and operated 
by any county or city board of education, except as 
provided in this subchapter.
“  (b) The State Board of Education shall be under no 
duty to supply transportation to any pupil or employee 
enrolled or employed in any school. Neither the State 
nor the State Board of Education shall in any manner be 
liable for the failure or refusal of any county or city 
board of education to furnish transportation, by school 
bus or otherwise, to any pupil or employee of any school, 
or for any neglect or action of any county or city board 
of education, or any employee of any such board, in the 
operation or maintenance of any school bus.”

The State Board of Education does allocate to the respec­
tive county and city boards of education all funds appro­
priated from time to time by the General Assembly for the 
purpose of providing transportation to the pupils enrolled 
in the public schools within the State. These funds are al­
located according to the number of pupils to be transported, 
the length of bus routes, road conditions and all other cir­
cumstances affecting the cost of transportation of pupils. The 
Superintendent of Public Instruction of the State has no 
duties in regard to transportation and the Governor of the 
State has no duties relating to school transportation. The 
Supreme Court of North Carolina has construed these statutes 
to relieve the State Board of Education from all duties in 
the field of transportation (HUFF v. BOARD OF EDUCA­
TION, 259 N. C. 75, 130 S. E. 2d 26; BROWN v. CHAR- 
LOTTE-MECKLENBURG BOARD OF EDUCATION, 267 
N. C. 740, 743, 149 S. E. 2d 10). And in the case of SPAR­
ROW v. GILL, 304 F. Supp. 86 (1969), a 3-judge federal 
court said:

“ The State may allocate its funds on any basis it chooses



12

— or may cut off funds entirely— so long as it does not ca­
priciously favor one group of citizens over another.”

The order of the 3-Judge Court, therefore, requires the 
State to furnish funds to provide public school busing to 
redress a racial imbalance even though the amount of such 
funds exceeds the amount appropriated for normal trans­
portation or exceeds the entire appropriation of the General 
Assembly. We do not contend that school boards are pro­
hibited from changing the racial organization of any par­
ticular school facility to provide constitutional schools and 
that buses may be used to transport to any of the facilities. 
We do contend that children cannot be changed around and 
bused far beyond the school in a pupil’s residence area simply 
to redress racial imbalance or that pupils may be moved 
around during the school term to maintain mathematical 
ratios.

The holding of the 3-Judge Court deprives 
the State of control over its funds.

While we have already discussed to some extent this subject, 
it should be stated that we are not aware of the proposition 
that a 3-judge federal court may order a State to expend its 
funds in a particular manner or to require the General As­
sembly of a State to appropriate funds according to the federal 
court. It has not yet been held by this Court that a State 
is required and that it is its constitutional duty to furnish 
funds according to some federal judicial formula.

The Court erred in failing to sustain 
the Motion to Dismiss all of the 

State defendants.
All federal judges in the State of North Carolina, except 

one, have held that the State Board of Education, the State 
Superintendent of Public Instruction and other State officers 
do not control and administer the public school system but 
such power is lodged in the local units (CONSTANTIAN v. 
ANSON COUNTY, 244 N. C. 221, 93 S. E. 2d 163; DILDAY 
v. BOARD OF EDUCATION, 267 N. C. 438, 148 S. E. 2d 
513; IN RE HAYS, 261 N. C. 616, 135 S. E. 2d 645; BLUE 
v. DURHAM PUBLIC SCHOOL DISTRICT, 95 F. Supp.



13

441; JEFFERS V .  WHITLEY, 165 F. Supp, 951; McKISSICK 
v. DURHAM CTTY BOARD OF EDUCATION, 176 F. 
Supp. 3).

In the case of COVINGTON v. EDWARDS, CCA-4, 264 
F. 2d 780, the United States Court of Appeals for the Fourth 
Circuit upheld this same principle. The 3-Judge Federal Court, 
therefore, should have dismissed this action against all the 
defendants. The defendant, Judge McLean, should not have 
been restrained from proceeding with the suit in the State 
Court (MITCHELL v. DONOVAN, No. 726, October Term, 
1969, Opinion filed June 15, 1970; ATLANTIC COASTLINE 
RAILROAD v. BROTHERHOOD OF LOCOMOTIVE EN­
GINEERS, No. 477, October Term, 1969, Opinion filed June 
8, 1970).

CONCLUSION
We conclude, therefore, that this Court should accept juris­

diction in this case. We further assert that quotas for religious 
minorities are not approved; quotas have been revised in 
our national immigration laws; quotas in alien employment 
rights have not been approved. We submit that quotas should 
not be approved in the public school system as between the 
races anymore than proportional representation in the jury 
system which this Court has expressly diapproved. Black 
pupils are entitled to go to the public schools on the same 
basis as white pupils and all this Court has decided in the 
Brown Cases is that the State must eliminate State sources 
of racial discrimination.

Respectfully submitted,

ROBERT B. MORGAN 
Attorney General of the 
State of North Carolina.
RALPH MOODY
Deputy Attorney General of 
the State of North Carolina

ANDREW A. VANORE, JR. 
Assistant Attorney General of 
the State of North Carolina

P. O. Box 629 
Justice Building 
Raleigh, North Carolina 27602 
Telephone: 829-3377



14

APPEN DIX
IN THE UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF NORTH CAROLINA 
CHARLOTTE DIVISION 

Civil No. 1974

JAMES E. SWANN, et al, Plaintiffs,

versus

CHARLOTTE-MECKLENBURG B O A R D  
OF EDUCATION, a public body corporate;
W ILLIAM  E. POE; HENDERSON BELK;
DAN HOOD; BEN F. HUNTLEY; BETSEY 
KELLY; COLEMAN W. KERRY, JR.; JULIA 
MAULDEN; SAM McNINCH, III; CARL­
TON G. WATKINS; THE NORTH CARO­
LINA STATE BOARD OF EDUCATION, a 
public body corporate; and DR. A. CRAIG 
PHILLIPS, Superintendent of Public Instruc­
tion of the State of North Carolina, Defendants,

and

HONORABLE ROBERT W. SCOTT, Gover­
nor of the State of North Carolina; HONOR­
ABLE A. C. DAVIS, Controller of the State 
Department of Public Instruction; HONOR­
ABLE W ILLIAM K. McLEAN, Judge of the 
Superior Court of Mecklenburg County; TOM 
B. HARRIS; G. DON ROBERSON; A.
BREECE BRELAND; JAMES M. POSTELL;
W ILLIAM E. RORIE, JR.; CHALMERS R.
CARR; ROBERT T. WILSON; and the CON­
CERNED PARENTS ASSOCIATION, an un­
incorporated association in Mecklenburg Coun- Additional 
ty; JAMES CARSON and W ILLIAM H. Parties 
BOOE, Defendant.



15

CIVIL NO. 2631

MRS. ROBERT LEE MOORE, et al, Plaintiffs,

versus

CHARLOTTE-MECKLENBURG B O A R D  
OF EDUCATION and WILLIAM C. SELF, 
Superintendent of Charlotte-Mecklenburg Pub­
lic Schools, Defendants.

FINAL JUDGMENT
Upon reconsideration of our memorandum opinion filed 

April 28, 1970, we withdraw Part V.

It is now ORDERED, ADJUDGED and DECREED that 
the following portion of N. C. General Statute 115-176.1 
prohibiting assignment by race and bussing be and hereby is 
held unconstitutional, void, and of no effect:

No student shall be assigned or compelled to attend any 
school on account of race, creed, color or national origin, 
or for the purpose of creating a balance or ratio of race, 
religion or national origins. Involuntary bussing of stu­
dents in contravention of this article is prohibited, and 
public funds shall not be used for any such bussing.

All parties are hereby enjoined from enforcing, or seeking the 
enforcement of, the foregoing portion of the statute.

Plaintiff’s motion to hold defendants in contempt is denied; 
the various motions to dismiss are denied.

This 22 day of June, 1970.
J. Braxton Craven
United States Circuit Judge

John D. Butzner, Jr.
United States Circuit Judge

James B. McMillan
United States District Judge



16

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION 
Civil No. 1974

JAMES E. SWANN, et al. Plaintiffs,

versus

CHARLOTTE-MECKLENBURG B O A R D  
OF EDUCATION, a public body corporate;
W ILLIAM  E. POE; HENDERSON BELK;
DAN HOOD; BEN F. HUNTLEY; BETSEY 
KELLY; COLEMAN W. KERRY, JR.; JULIA 
MAULDEN; SAM McNINCH, III; CARL­
TON G. WATKINS; THE NORTH CARO­
LINA STATE BOARD OF EDUCATION, a 
public body corporate; and DR. A. CRAIG 
PHILLIPS, Superintendent of Public Instruc­
tion of the State of North Carolina, Defendants,

and

HONORABLE ROBERT W. SCOTT, Gover­
nor of the State of North Carolina; HONOR­
ABLE A. C. DAVIS, Controller of the State 
Department of Public Instruction; HONOR­
ABLE WILLIAM K. McLEAN, Judge of the 
Superior Court of Mecklenburg County; TOM 
B. HARRIS; G. DON ROBERSON; A.
BREECE BRELAND; JAMES M. POSTELL;
W ILLIAM E. RORIE, JR.; CHALMERS R.
CARR; ROBERT T. WILSON; and the CON­
CERNED PARENTS ASSOCIATION, an un­
incorporated association in Mecklenburg Coun- Additional 
ty; JAMES CARSON and WILLIAM II. Parties 
BOOE, Defendant.



17

Civil No. 2631 
MRS. ROBERT LEE MOORE, et al., Plaintiffs,

versus
CHARLOTTEE-MECKLENBURG BOARD 
OF EDUCATION and WILLIAM C. SELF, 
Superintendent of Charlotte-Mecklenburg Pub­
lic Schools, Defendants.

THREE-JUDGE COURT

(Heard March 24, 1970 Decided April 29, 1970.)

Before CRAVEN and BUTZNER, Circuit Judges, and Mc- 
MILLAN, District Judge.

Mr. J. LeVonne Chambers (Chambers, Stein, Ferguson & Tan­
ning) and James M. Nabrit, III, for Plaintiffs in No. 1974; 
Mr. William J. Waggoner (Weinstein, Waggoner, Sturges, 
Odom & Bigger) and Mr. Benjamin Horack, for Defendants 
in No. 1974; Mr. Ralph Moody, Deputy Attorney General, 
and Mr. Andrew A. Vanore, Jr., Assistant Attorney General, 
for State Defendants and Additional Parties-Defendant in No. 
1974; and Mr. William H. Booe and Mr. Whiteford S. Blake- 
ney, for other Additional Parties-Defendant in No. 1974.

Mr. William H. Booe and Mr. Whiteford S. Blakeney for 
Plaintiffs in No. 2631; and Mr. William J. Waggoner (Weins­
tein, Waggoner, Sturges, Odom & Bigger) for Defendants in 
No. 2631.

CRAVEN, Circuit Judge:

This three-judge district court was convened pursuant to 
28 U.S.C. § 2281, et seq. (1964), to consider a single aspect 
of the above-captioned case: the constitutionality and impact 
of a state statute, N. C. Gen. Stat. § 115-176.1 (Supp. 1969), 
known as the antibussing law, on this suit brought to de­



18

segregate the Charlotte-Mecklenburg school system. We hold 
a portion of N. C. Gen. Stat. § 115-176.1 unconstitutional be­
cause it may interfere with the school board’s performance of 
its affirmative constitutional duty under the equal protection 
clause of the Fourteenth Amendment.

I.

On February 5, 1970, the district court entered an order 
requiring the Charlotte-Mecklenburg School Board to de­
segregate its school system according to a court-approved plan. 
Implementation of the plan could require that 13,300 addition­
al children be bussed.1 This, in turn, could require up to 138 
additional school buses.1 2

Prior to the February 5 order, certain parties filed a suit, 
entitled Tom B. Harris, G. Don Roberson, et al. v. William C. 
Self, Superintendent of Charlotte-Mecklenburg Schools and 
Charlotte-Mecklenburg Board of Education, in the Superior 
Court of Mecklenburg County, a court of general jurisdiction 
of the State of North Carolina. Part of the relief sought was 
an order enjoining the expenditure of public funds to pur­
chase, rent or operate any motor vehicle for the purpose of 
transporting students pursuant to a desegregation plan. A 
temporary restraining order granting this relief was entered by 
the state court, and, in response, the Swann plaintiffs moved 
the district court to add the state plaintiffs as additional par­
ties defendant in the federal suit, to dissolve the state restrain­
ing order, and to direct all parties to cease interfering with the 
federal court mandates. Because it appeared that the con­

1. On March 5, 1970, the Fourth Circuit Court of Appeals stayed 
that portion of the district court’s order requiring bussing of 
students pending appeal to the higher court.

2. There is a dispute between the parties as to the additional num­
ber of children who will be bussed and as to the number of 
additional buses that will be needed. For our purposes, it is im­
material whose figures are correct. The figures quoted are taken 
from the district judge’s supplemental findings of fact, filed 
March 21, 1970.



19

stitutionality of N. C. Gen. Stat. § 115-176.1 (Supp. 1969) 
would be in question, the district court requested designation of 
this three-judge-court on February 19, 1970. On February 25, 
1970, the district judge granted the motion to add additional 
parties. Meanwhile, on February 22, 1970, another state suit, 
styled Mrs. Robert Lee Moore, et al. v. Charlotte-Mecklenburg 
Board of Education and William C. Self, Superintendent of 
Charlotte-Mecklenburg Schools, was begun. In this second 
state suit, the plaintiffs also requested an order enjoining the 
school board and superintendent from implementing the plan 
ordered by the district court on February 5. The state court 
judge issued a temporary restraining order embodying the relief 
requested, and on February 26, 1970, the Swann plaintiffs 
moved to add Mrs. Moore, et al., as additional parties defend­
ant in the federal suit. On the same day, the state defend­
ants filed a petition for removal of the Moore suit to fed­
eral court. On March 23, 1970, the district judge requested a 
three-judge court in the removed Moore case, and this panel 
was designated to hear the matter. All the cases were consoli­
dated for hearing, and the court heard argument by all parties 
on March 24, 1970.

II.

N. C. Gen. Stat. § 115-176.1 (Supp. 1969) reads:

Assignment of pupils based on race, creed, color or 
national origin prohibited.—No person shall be refused ad­
mission into or be excluded from any public school in this 
State on account of race, creed, color or national origin. 
No school attendance district or zone shall be drawn for 
the purpose of segregating persons of various races, creeds, 
colors or national origins from the community.

Where administrative units have divided the geographic 
area into attendance districts or zones, pupils shall be as­
signed to schools within such attendance districts; provid­
ed, however, that the board of education of an administra­
tive unit may assign any pupil to a school outside of such



20

attendance district or zone in order that such pupil may 
attend a school of a specialized kind including but not 
limited to a vocational school or school operated for, or 
operating programs for, pupils mentally or physically 
handicapped, or for any other reason which the board of 
education in its sole discretion deems sufficient. No stu­
dent shall be assigned or compelled to attend any school 
on account of race, creed, color or national origin, or for 
the purpose of creating a balance or ratio of race, religion 
or national origins. Involuntary bussing of students in 
contravention of this article is prohibited, and public funds 
shall not be used for any such bussing.

The provisions of this article shall not apply to a temp­
orary assignment due to the unsuitability of a school for 
its intended purpose nor to any assignment or transfer 
necessitated by overcrowded conditions or other circum­
stances which, in the sole discretion of the school board, 
require assignment or reassignment.

The provisions of this article shall not apply to an ap­
plication for the assignment or reassignment by the parent, 
guardian or person standing in loco parentis of any pupil 
or to any assignment made pursuant to a choice made by 
any pupil wdio is eligible to make such choice pursuant 
to the provisions of a freedom of choice plan voluntarily 
adopted by the board of education of an administrative 
unit.

It is urged upon us that the statute is far from clear and 
may reasonably be interpreted several different ways.

(A) Plaintiffs read the statute to mean that the school 
board is prevented from complying with its duty under 
the Fourteenth Amendment to establish a unitary school 
system. See, e.g., Green v. County School Bd. of New Kent 
County, 391 U.S. 430, 439 (1968). In support of this con­
tention, plaintiffs argue that the North Carolina General 
Assembly passed § 115-176.1 in response to an April 23,



21

1909, district court order, which required the school board 
to submit a plan to desegregate the Charlotte schools for 
the 1909-70 school year. Under plaintiffs’ interpretation of 
the statute, the board is denied all desegregation tools 
except nongerrymandered geographic zoning and freedom 
of choice. Implicit in this, of course, is the suggestion that 
zoning and freedom of choice will be ineffective in the 
Charlotte context to disestablish the asserted duality of 
the present system.

(B) The North Carolina Attorney General argues that 
the statute was passed to preserve the neighborhood school 
concept. Under his interpretation, the statute prohibits 
assignment and bussing inconsistent with the neighbor­
hood school concept. Thus, to disestablish a dual system 
the district court could, consistent with the statute, only 
order the board to geographically zone the attendance 
areas so that, as nearly as possible, each student would be 
assigned to the school nearest his home regardless of his. 
race. Implicit in this argument is that any school system 
is per se unitary if it is zoned according to neighborhood 
patterns that are not the result of officially sanctioned 
racial discrimination. Although the Attorney General em­
phasizes the expression of state policy by the Legislature 
in favor of the neighborhood school concept, he recognizes, 
of course, that the statute also permits freedom of choice 
if a school board voluntarily adopts such a plan. Thus, the 
plaintiffs and the Attorney General read the statute in 
much the same way: that it limits lawful methods of 
accomplishing desegregation to nongerrymandered geo­
graphic zoning and freedom of choice.

(C) The school board’s interpretation of the statute is 
more ingenious. The board concedes that the statute pro­
hibits assignment according to race, assignment to achieve 
racial balance, and involuntary bussing for either of these 
purposes, but contends that the facial prohibitions of the 
statute only apply to prevent a school board from doing



22

more than necessary to attain a unitary system. The 
argument is that since the statute only begins to operate 
once a unitary system has been established, it in no way 
interferes with the board’s constitutional duty to de~ 
segrate the schools. Counsel goes on to insist that Char- 
lotte-Mecklenburg presently has a unitary system and, 
therefore, that the state court constitutionally applied the 
statute to prevent further unnecessary racial balancing.

(D) Plaintiffs in the Harris suit contend (1) that in 
42 U.S.C. §§ 2000c (b) and 2000c-6 (a) (2) (1964)3 Con­
gress expressly prohibited assignment and bussing to 
achieve racial balance, (2) that to compel a child to at­
tend a school on account of his race or to compel him to 
be involuntarily bussed to achieve a racial balance violates 
the principle of Brown v. Bd. of Ed. of Topeka, 347 U.S. 
483 (1954), and (3) that N. C. Gen. Stat. § 115-176.1 
merely embodies the principle of the neighborhood school 
in accordance with Brown and the Civil Rights Act of 
1964. We may dispose of the first contention at once. The 
statute “ cannot be interpreted to frustrate the constitu­
tional prohibition [against segregated schools].”  United

3.
§ 2000c:

As used in this subchapter—
(b) “Desegregation” means the assignment of students to 

public schools and within such schools without regard to their 
race, color, religion, or national origin, but “desegregation” shall 
not mean the assignment of students to public schools in order 
to overcome racial imbalance.

§ 2000c-6(a):
(2) [Provided that nothing herein shall empower any official 

or court of the United States to issue any order seeking to 
achieve a racial balance in any school by requiring the trans­
portation of pupils or students from one school to another or 
one school district to another in order to achieve such racial 
balance, or otherwise enlarge the existing power of the court to 
insure compliance with constitutional standards.



23

States v. School Dist. 151 of Cook Co., 404 F. 2d 1125, 
1130 (7th Cir. 1968).

(E) Plaintiffs in the Moore suit argue that the district 
court order of February 5, 1970, was in contravention of 
Brown and, therefore, that the state court order in their 
suit was justified. However, the Moore plaintiffs also argue 
that certain parts of the second and third paragraphs in 
the state statute are unconstitutional because they give 
the school board the authority to assign children to 
schools for whatever reasons the board deems necessary 
or sufficient. The Moore plaintiffs interpret these portions 
of the statute as permitting assignment and bussing on 
the basis of race contrary to Brown and the Fourteenth 
Amendment.

III.

Federal courts are reluctant, as a matter of comity and 
respect for state legislative judgment and discretion, to strike 
down state statutes as unconstitutional, and will not do so 
if the statute reasonably can be interpreted so as not to 
conflict with the federal Constitution. But to read the statute 
as innocuously as the school board suggests would, we think, 
distort and twist the legislative intent. We agree with plain­
tiffs and the Attorney General that the statute limits the 
remedies otherwise available to school boards to desegregate 
the schools. The harder question is whether the limitation 
is valid or conflicts with the Fourteenth Amendment. We 
think the question is not so easy, and the statute not so 
obviously unconstitutional, that the question may lawfully be 
answered by a single federal judge, see Turner v. City of 
Memphis, 369 U. S. 350 (1962); Bailey v. Patterson, 369 U. S. 
31 (1962), and we reject plaintiffs’ attack upon our juris­
diction. Swift & Co. v. Wickham, 382 U. S. I l l  (1965); C. 
Wright, Law of Federal Courts § 50 at 190 (2d ed. 1970).

In Green v. County School Bd. of New Kent Co., 391 U. S. 
430 (1968), the Supreme Court declared that a school board



24

must take effective action to establish a unitary, nonracial 
system, if it is not already operating such a system. The 
Court neither prohibited nor prescribed specific types of plans, 
but, rather, emphasized that it would judge each plan by 
its ultimate effectiveness in achieving desegregation. In Green 
itself, the Court held a freedom-of-choice plan insufficient be­
cause the plan left the school system segregated, but stated 
that, under the cirumstances existing in New Kent County, 
it appeared that the school board could achieve a unitary 
system either by simple geographical zoning or by consoli­
dating the two schools involved in the case. 391 U. S. at 
442, n. 6. Under Green and subsequent decisions, it is clear 
that school boards must implement plans that work to achieve 
unitary systems. Northcross v. Bd. of Ed. of the Memphis
City Schools,------ U. S---------, 38 L.W. 4219 (1970) ; Alexander
v. Holmes Co. Bd. of Ed., 396 U. S. 19 (1969) . Plans that do 
not produce a unitary system are unacceptable.4

We think the enunciation of policy by the legislature of 
the State of North Carolina is entitled to great respect. 
Federalism requires that whenever it is possible to achieve 
a unitary system within a framework of neighborhood schools, 
a federal court ought not to require other remedies in dero­
gation of state policy. But if in a given fact context the 
state’s expressed preference for the neighborhood school cannot 
be honored without preventing a unitary system, it is the 
former policy which must yield under the Supremacy Clause.

Stated differently, a statute favoring the neighborhood 
school concept, freedom-of-choice plans, or both can validly

4. The reach of the Court’s mandate is not yet clear:
[A]s soon as possible . . .  we ought to resolve some of the 

basic practical problems when they are appropriately presented 
including whether, as a constitutional matter, any particular 
racial balance must be achieved in the schools; to what extent 
school districts and zones may or must be altered as a con­
stitutional matter; to what extent transportation may or must 
be provided to achieve the ends sought by prior holdings of the 
Court.



25

limit a school board’s choice of remedy only if the policy 
favored will not prevent the operation of a unitary system. 
That it may or may not depends upon the facts in a particular 
school system. The flaw in this legislation is its rigidity. As 
an expression of state policy, it is valid. To the extent that 
it may interfere with the board’s performance of its affir­
mative constitutional duty to establish a unitary system, it 
is invalid.

The North Carolina statute, analyzed in light of these 
principles, is unconstitutional in part. The first paragraph 
of the statute reads:

No person shall be refused admission into or be exclud­
ed from any public school in this State on account of 
race, creed, color or national origin. No school attendance 
district or zone shall be drawn for the purpose of segre­
gating persons of various races, creeds, or national origins 
from the community.

Northcross v, Bd. of Ed. of the Memphis City Schools, -------
U. S. ____, 38 L.W. at 4220 (1970) (Chief Justice Burger,
concurring). For our purposes, it is sufficient to say that the 
mandate applies to require “ reasonable” or “ justifiable” solu­
tions. See generally Fiss, Racial Imbalance in the Public 
Schools: The Constitutional Concepts, 78 Harv. L. Rev. 564 
(1965).

There is nothing unconstitutional in this paragraph. It is 
merely a restatement of the principle announced in Brown v. 
Bd. of Ed. of Topeka, 347 U. S. 483 (1954) (Brown I).

The third paragraph of the statute reads:

The provisions of this article shall not apply to a 
temporary assignment due to the unsuitability of a school 
for its intended purpose nor to any assignment or trans­
fer necessitated by overcrowded conditions or other cir­
cumstances which, in the sole discretion of the school 
board, require assignment or reassignment.



26

This paragraph merely allows the school board noninvidious 
discretion to assign students to schools for valid administra­
tive reasons. As we read it, it does not relate to race at all and, 
so read, is constitutional.

The fourth paragraph provides:

The provisions of this article shall not apply to an 
application for the assignment or reassignment by the 
parent, guardian or person standing in loco parentis of 
any pupil or to any assignment made pursuant to a choice 
made by any pupil who is eligible to make such choice 
pursuant to the provisions of a freedom of choice plan 
voluntarily adopted by the board of education of an 
administrative unit.

This paragraph relieves school boards from compliance with 
the statute where they are implementing voluntarily adopted 
freedom-of-choice plans within their systems. It does not re­
quire the boards to adopt freedom of choice in any particular 
situation, but leaves them free to comply with their con­
stitutional duty by any effective means available, including, 
where it is appropriate, freedom of choice. So interpreted, 
the paragraph is constitutional.

The second paragraph of the statute contains the consti­
tutional infirmity. It reads:

Where administrative units have divided the geographic 
area into attendance districts or zones, pupils shall be 
assigned to schools within such attendance districts; pro­
vided, however, that the board of education of an ad­
ministrative unit may assign any pupil to a school out­
side of such attendance district or zone in order that 
such pupil may attend a school of a specialized kind 
including but not limited to a vocational school or school 
operated for, or operating programs for, pupils mentally 
or physically handicapped, or for any other reason which 
the board of education in its sole discretion deems suf­
ficient. No student shall be assigned or compelled to



27

attend any school on account of race, creed, color or 
national origin, or for the purpose of creating a balance 
or ratio of race, religion or national origins. Involuntary 
bussing of students in contravention of this article is 
prohibited, and public funds shall not be used for any 
such bussing.

The first sentence of the paragraph presents no greater con­
stitutional problem than the third and fourth paragraphs of 
the statute, discussed above. It allows school boards to 
establish a geographically zoned neighborhood school system, 
but it does not require them to do so. Consequently, this 
sentence does not prevent the boards from complying with 
their constitutional duty in circumstances where zoning and 
neighborhood school plans may not result in a unitary system. 
The clause in the first sentence permitting assignment for 
“ any other reason” in the board’s “ sole discretion” we read 
as meaning simply that the school boards may assign outside 
the neighborhood school zone for noninvidious administrative 
reasons. So read, it presents no difficulty. The second and 
third sentences are unconstitutional. They plainly prohibit 
school boards from assigning, compelling, or involuntarily 
bussing students on account of race, or in order to racially 
“ balance” the school system. Green v. School Bd. of New Kent 
Co., 391 U. S. 430 (1968), Brown v. Bd. of Ed. of Topeka, 349 
U. S. 294 (1955) (Brown I I ) , and Brown v. Bd. of Ed of 
Topeka, 347 U. S. 483 (1954) (Brown I), require school boards 
to consider race for the purpose of disestablishing dual systems.

The Constitution is not color-blind with respect to the 
affirmative duty to establish and operate a unitary school 
system. To say that it is would make the constitutional prin­
ciple of Brown I and II an abstract principle instead of an 
operative one. A flat prohibition against assignment by race 
would, as a practical matter, prevent school boards from alter­
ing existing dual systems. Consequently, the statute clearly 
contravenes the Supreme Court’s direction that boards must 
take steps adequate to abolish dual systems. See Green v.



28

School Bd. of New Kent Co., 391 U. S. 430, 437 (1968) . As 
far as the prohibition against racial “ balance” is concerned, 
a school board, in taking affirmative steps to desegregate its 
system, must always engage in some degree of balancing. The 
degree of racial “ balance” necessary to establish a unitary 
system under given circumstances is not yet clear, see North-
cross v. Bd. of Ed. of the Memphis City Schools, ........ U. S.
____, 38 L.W. at 4220 (1970) (Chief Justice Burger concur­
ring) , but because any method of school desegregation in­
volves selection of zones and transfer and assignment of pupils 
by race, a flat prohibition against racial “ balance” violates 
the equal protection clause of the Fourteenth Amendment. 
Finally, the statute’s prohibition against “ involuntary bus­
sing” also violates the equal protection clause. Bussing may 
not be necessary to eliminate a dual system and establish a 
unitary one in a given case, but we think the Legislature 
went too far when it undertook to prohibit its use in all 
factual contexts. To say that bussing shall not be resorted 
to unless unavoidable is a valid expression of state policy, but 
to flatly prohibit it regardless of cost, extent and all other 
factors— including willingness of a school board to experiment 
— contravenes, we think, the implicit mandate of Green that 
all reasonable methods be available to implement a unitary 
system.

Although we hold these statutory prohibitions unconstitu­
tional as violative of equal protection, it does not follow that 
“ bussing” will be an appropriate remedy in any particular 
school desegregation case. On this issue we express no opinion, 
for the question is now on appeal to the United States Court 
of Appeals for the Fourth Circuit and is not for us to decide.

It is clear that each case must be analyzed on its own 
facts. See Green v. School Bd. of New Kent Co., 391 U. S. 430 
(1968). The legitimacy of the solutions proposed and ordered 
in each case must be judged against the facts of a particular 
school system. We merely hold today that North Carolina may 
not validly enact laws that prevent the utilization of any



29

reasonable method otherwise available to establish unitary 
school systems. Its effort to do so is struck down by the 
equal protection clause of the Fourteenth Amendment and the 
Supremacy Clause (Article VI, clause 2 of the Constitution) .

V.
As we have no cause to doubt the sincerity of the various 

defendants, the plaintiffs’ motion to hold them in contempt 
for interference with the district court’s orders and their 
request for an injunction against enforcement of the statute 
will be denied. We believe the defendants, including the state 
court plaintiffs, will, pending appeal, respect this court’s judg­
ment, which applies statewide with respect to the constitu­
tionality of the statute.

Several of the parties have moved to be dismissed from 
the case, alleging various grounds in support of their motions. 
Because of the view we take of this suit and the limited relief 
we grant, the motions to dismiss become immaterial. The 
school board is undeniably a proper party before the court 
on the constitutional issue, since it is a party to the desegre­
gation suit. We can, therefore, consider and adjudge the 
validity of the statute, regardless of the position of the other 
parties. That we consider the substantive arguments of all 
the parties in no way harms those who have moved to be 
dismissed.

An appropriate judgment will be entered in accordance with 
this opinion.



30

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division 
Civil Action No. 1974

JAMES E. SWANN, et al, Plaintiffs, 
v

CHARLOTTE-MECKLENBURG BOARD  
OF EDUCATION, a public body corporate; 
WILLIAM E. POE; HENDERSON BELK; 
DAN HOOD; BEN F. HUNTLEY; BETSEY 
KELLY; COLEMAN W. KERRY, JR.; JULIA 
MAULDEN; SAM McNINCH, III; CARL­
TON G. WATKINS; THE NORTH CARO­
LINA STATE BOARD OF EDUCATION, a 
public body corporate; and DR. A. CRAIG 
PHILLIPS, Superintendent of Public Instruc­
tion of the State of North Carolina,

Defendants,
and

HONORABLE ROBERT W. SCOTT, Gover­
nor of the State of North Carolina; HONOR­
ABLE A. C. DAVIS, Controller of the State 
Department of Public Instruction; HONOR­
ABLE WILLIAM K. McLEAN, Judge of the 
Superior Court of Mecklenburg County; TOM 
B. HARRIS; G. DON ROBERSON; A. 
BREECE BRELAND; JAMES M. POSTELL; 
WILLIAM E. RORIE, JR.; CHALMERS R. 
CARR; ROBERT T. WILSON; and the CON­
CERNED PARENTS ASSOCIATION, an un­
incorporated association in Mecklenburg Coun­
ty; JAMES CARSON and WILLIAM H. 
BOOE,

Additional Parties Defendant

)
)
)
)
)
)
)
)
)
)
)
)
) DESIGNA- 
) TION OF 
) THREE- 
) JUDGE 
) COURT 
)
)
)
)
)
)
)
)
)
)
)
)
)
)



31

It appearing to the undersigned Chief Judge of the Fourth 
Judicial Circuit of the United States that a civil action as 
above-entitled has been instituted in the United States District 
Court for the Western District of North Carolina, and that a 
motion and application for restraining order and other relief 
have been filed in this action which do or may raise the ques­
tion of the constitutionality of Section 115-176,1 of the General 
Statutes of North Carolina, commonly spoken of as the “ anti­
bussing” statute and which application and motion also raise 
other questions; and that application for relief as set out in 
the pending motion and order was made to James B. M c­
Millan, United States District Judge for the Western District 
of North Carolina, who has notified the undersigned, pursuant 
to Section 2284 of Title 28, United States Code, of the pen­
dency of such application to the end that a court of three 
judges may be constituted in accordance with Section 2281, 
Title 28, United States Code.

Now, therefore, I do hereby designate Honorable J. Braxton 
Craven, Jr., United States Circuit Judge, Fourth Judicial 
Circuit, and Honorable John D. Butzner, Jr., United States 
Circuit Judge, Fourth Judicial Circuit, to serve with the 
Honorable James B. McMillan in the hearing and deter­
mination of the above-entitled action, as provided by law, 
the three to constitute a district court of three judges as pro­
vided by Section 2284, Title 28, United States Code.

This the 23rd day of February, 1970.

Clement F. Haynsworth, Jr.
Chief Judge - Fourth Circuit



32

IN  THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division 
Civil Action No. 1974

JAMES E. SWANN, et al, Plaintiffs, )
v )

CHARLOTTE-MECKLENBURG BOARD } 
OF EDUCATION, a public body corporate; ' 
WILLIAM E. POE; HENDERSON BELK; ' 
DAN HOOD; BEN F. HUNTLEY; BETSEY ' 
KELLY; COLEMAN W. KERRY, JR.; JULIA ' 
MAULDEN; SAM McNINCH, III; CARL- ' 
TON G. WATKINS; THE NORTH CARO­
LINA STATE BOARD OF EDUCATION, a ' 
public body corporate; and DR. A. CRAIG ' 
PHILLIPS, Superintendent of Public Instruc- , 
tion of the State of North Carolina, '

Defendants,
and '

HONORABLE ROBERT W. SCOTT, Gover- ) 
nor of the State of North Carolina; HONOR- ) 
xABLE A. C. DAVIS, Controller of the State ) 
Department of Public Instruction; HONOR- ) 
ABLE WILLIAM K. McLEAN, Judge of the ) 
Superior Court of Mecklenburg County; TOM ) 
B. HARRIS; G. DON ROBERSON; A. ) 
BREECE BRELAND; JAMES M. POSTELL; ) 
WILLIAM E. RORIE, JR.; CHALMERS R. ) 
CARR; ROBERT T. WILSON; and the CON- ) 
CERNED PARENTS ASSOCIATION, an un- ) 
incorporated association in Mecklenburg Coun- ) 
ty; JAMES CARSON and WILLIAM H. ) 
BOOE, )

Additional Parties Defendant )

NOTIFI­
CATION  
AND RE­
QUEST 

FOR DE­
SIGNA­

TION OF 
THREE- 
JUDGE 
COURT



33

Several orders, starting April 23, 1969, have been entered by 
this court dealing with pending motions for desegregation of 
the Charlotte-Mecklenburg schools. The orders of December 
1 and December 2, 1969, and February 5, 1970, are attached 
as Exhibits A, B and C to this motion.

The December 2, 1969, order appointed Dr. John A. Finger, 
Jr. to assist the court in the preparation of a plan for the 
desegregation of the schools. The February 5, 1970, order 
directs the schools to be desegregated according to various prin­
ciples described or referred to in the order, including the 
requirement erroneously advertised as “ involuntary bussing 
to achieve racial balance” which reads as follows:

“That transportation be offered on a uniform nonracail 
basis to all children whose attendance in any school is 
necessary to bring about the reduction of segregation, 
and who live farther from the school to which they 
are assigned than the Board determines to be walking 
distance.”

A suit has been filed in the General Court of Justice, Su­
perior Court Division, Mecklenburg County, North Carolina, 
No. 70-CVS-1097, entitled “ TOM B. HARRIS, G. DON RO­
BERSON, et al, Plaintiffs, vs. W ILLIAM  C. SELF, Superin­
tendent of Charlotte-Mecklenburg Schools, and CHAR­
LOTTE BOARD OF EDUCATION, Defendants,” and pur­
suant to allegations made in that action, Judge W, K. McLean, 
of the Superior Court of North Carolina, has entered an 
order temporarily restraining the School Board and the Su­
perintendent from paying Dr. Finger’s bills until they have 
been approved by the Board of Education, and ordering that 
“ the defendant Charlotte-Mecklenburg Board of Education 
and its agents, servants and employees be and they hereby 
are enjoined and restrained from expending any money from 
tax or other public funds for the purpose of purchasing or 
renting any motor vehicles, or operating or maintaining such, 
for the purpose of involuntarily transporting students in the



34

Charlotte-Mecklenburg School System from one school to 
another and from one district to another district.”

The complaint, the amended complaint and the two orders 
of Judge McLean dated February 12, 1970, are attached 
hereto as Exhibit D.

The Governor of North Carolina has made a public state­
ment, Exhibit E, and has written a letter to the Department 
of Administration, Exhibit F.

The State Superintendent of Public Instruction, a party to 
this case, has made a public statement, Exhibit G.

Reports received from the School Board on February 12, 
1970, and February 19, 1970, fail to mention Judge McLean’s 
order, and fail to indicate that the Board have appealed or 
intend to appeal Judge McLean’s order; and these reports also 
reveal no action by the Board or school staff addressed to the 
transportation problem. It appears that whether the action of 
Judge McLean and the other state officials do or do not direct­
ly conflict with this court’s orders, the practical effect of those 
actions is or may be to delay or defeat compliance with the 
orders of this United States Court.

The plaintiffs have filed a motion to make additional parties, 
and have requested this court to enter orders dissolving Judge 
McLean’s restraining orders and directing the Governor, the 
State Department of Instruction and the “Concerned Parents 
Association” and their attorneys and others not to interfere 
further with the compliance of the school Board with the 
orders of this court.

Some of the issues raised by this situation may involve the 
constitutionality of a state statute and others may be matters 
cognizable by a single judge.

It appearing to the court that pursuant to Title 28, U.S.C.A., 
this matter should be heard and determined by a district court 
of three judges.



35

NOW, THEREFORE, it is respectfully requested that the 
Chief Judge of the United States Court of Appeals for the 
Fourth Circuit designate two other judges, at least one of whom 
shall be a circuit judge, to serve with the undersigned district 
judge as members of the court to hear and determine the action.

This the 19th day of February, 1970.

James B. McMillan 
United States District Judge



36

IN THE
UNITED STATES DISTRICT COURT 

FOR THE
WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION

JAMES E. SWANN, et al, )
Plaintiffs )

v )
)

CHARLOTTE-MECKLENBURG BOARD )
OF EDUCATION, a public body corporate; )
WILLIAM E. POE; HENDERSON BELL: )
DAN HOOD; BEN F. HUNTLEY; BETSEY ) CIVIL 
KELLY; COLEMAN W. KERRY, JR.; JULIA ) ACTION 
MAULDEN; SAM McNINCH, III; CARL- ) NO. 1974 
TON G. WATKINS; THE NORTH CARO- )
LINA STATE BOARD OF EDUCATION, a ) 
public body corporate; and DR. A. CRAIG )
PHILLIPS, SUPERINTENDENT OF PUB- )
LIC INSTRUCTION OF THE STATE OF )
NORTH CAROLINA, )

Defendants )

SUPPLEMENTAL COMPLAINT
I.

This Supplemental Complaint is a proceeding for a tempor­
ary restraining order and a preliminary and permanent in­
junction against the enforcement of the portions of North 
Carolina General Statutes §115-176.1, (Chapter 1274 of the 
Session Laws of the 1969 General Assembly of North Carolina, 
ratified on July 2, 1969, a copy of which is attached hereto 
as Exhibit A) which reads:

“ No student shall be assigned or compelled to attend any 
school on account of race, creed, color or national origin, 
or for the purpose of creating a balance or ratio of race,



37

religion or national origin. Involuntary bussing of stu­
dents in contravention of this Article is prohibited, and 
public funds shall not be used for any such bussing.”

In addition, plaintiffs seek a declaratory judgment that the 
statutory provisions complained of are unconstitutional on 
their face and as applied.

II.
A. Jurisdiction of this Court is invoked under 28 USC § 1343, 

this being a suit in equity authorized by 42 USC § 1983 to 
redress the deprivation, under color of North Carolina Law, of 
rights, privileges and immunities guaranteed by the Thirteenth 
and Fourteenth Amendments to the Constitution of the United 
States.

B. Jurisdiction is further invoked under 28 USC § § 2281 
and 2284, this being a suit for a temporary restraining order, 
an interlocutory and permanent injunction restraining the en­
forcement, operation and execution of portions of North Caro­
lina General Statutes § 115-176.1 and requiring the convening 
of a three-judge Federal Court. Jurisdiction is further invoked 
under 28 USC § § 2201 and 2202, this being a suit for a declar­
atory judgment declaring the unconstitutionality of portions of 
North Carolina General Statutes 115-176.1.

III.
A. The plaintiffs bringing this Supplemental Complaint are 

those plaintiffs who originally brought this action styled James 
E. Swann, et ah, v. Charlotte-Mecklenburg Board of Educa­
tion, Civil Action No. 1974, which was filed on January 12, 
1965.

B. This Supplemental Complaint, as the original complaint, 
is brought on behalf of the individual plaintiffs and other black 
students and parents similarly situated, pursuant to Rule 23 (a) 
and (b) of the Federal Rules of Civil Procedure. There are 
common questions of law and fact affecting the rights of such 
other black students, who are and have been limited, classi­



38

fied, segregated or otherwise discriminated against in ways 
which deprive or tend to deprive them of equal educational 
opportunities because of race or color. The members of the class 
are so numerous as to make it impractical to bring them all 
before the Court. A common relief is sought and plaintiffs 
adequately represent the interests of the class.

IV.
The defendants in this action are:

(a) The Charlotte-Mecklenburg Board of Education, the 
original defendant in this case, and the individual members 
thereof heretofore added as defendants by order of the Court 
dated June 4, 1969;

(b) The North Carolina State Board of Education, a public 
body corporate of the State of North Carolina, which is charg­
ed by the State Constitution and laws with the duty and re­
sponsibility of the general supervision and administration of 
the public schools and educational funds of the State of North 
Carolina; and

(c) Dr. A. Craig Phillips, who is the elected State Super­
intendent of Public Instruction of the State of North Carolina, 
the administrative head of the Public School System of the 
State and by force of law, a member and the Secretary of the 
State Board of Education.

V.
Plaintiffs initially commenced this action on January 12, 

1965, (Civil Action No. 1974) against the Charlotte-Mecklen­
burg Board of Education seeking to obtain the elimination of 
racial segregation in the public schools in Mecklenburg County.

VI.
On July 14, 1969, the Court entered an Order approving a 

plan submitted by the Board for the desegregation of the 
schools. The plaintiffs appealed and the decision was affirmed 
by the United States Court of Appeals for the Fourth Circuit.



39

(Swann v Charlotte-Mecklenburg Board of Education, 369 F 
2d ____  (Fourth Circuit 1966.).)

VII.
A. On September 6, 1968, the plaintiffs moved the Court 

for further relief contending that the Board was required to 
take further steps to disestablish the dual school system in 
Mecklenburg County.

B. On April 23, 1969, the Court, following several days of 
testimony heard in March, 1969, entered an Opinion and 
Order Regarding the Desegregation of the Schools of Charlotte 
and Mecklenburg County. The Court found that the schools 
remained segregated, that the pupil assignment system and 
the placement of the schools continued to racially segregate 
the pupils, that the faculties had not been adequately de­
segregated as previously directed by the Court in 1965 and that 
the Board was to submit a plan for the desegregation of the 
schools by May 15, 1969.

C. The Order directed the defendants to submit a plan for 
the active and complete desegregation of the teachers within 
the system to be effective in the 1969-70 school year and that 
the plan should seek to apportion teachers to each school in 
substantially the same ratio (3 to 1) as the ratio of white 
teachers and black teachers in the system at large.

D. The defendants were also directed to submit a plan and 
timetable for the active and complete desegregation of the 
pupils within the system to be predominantly effective in the 
fall of 1969, and to be completed by the fall of 1970.

E. The Board was directed to consider several methods of 
desegregation which had been advanced by the plaintiffs, in­
cluding pairing of grades and schools; feeding elementary 
schools into junior and senior high schools; combining zones 
and free choice where each method proceeds logically towards 
eliminating segregation; bussing and other transportation; 
setting up large consolidated school units freely crossing city



40

and county lines to serve larger areas; and to seek aid as may 
be available from State and Federal agencies.

F. The Court thereafter upon request of defendant, granted 
an extension of time until May 29, 1969, within which to file 
its plan.

VIII.
A. On May 15, 1969, the plaintiffs filed a motion for a 

temporary restraining order seeking to restrain all school con­
struction pending approval by the Court of a school construc­
tion plan designed to promote desegregation of the schools.

B. The Board filed its plan on May 28, 1969, as required 
by the Order of the Court.

C. On June 4, 1969, the Court entered orders setting a date 
for hearing on the adequacy of the defendant’s plan and set 
forth certain questions to which the parties were to respond at 
the hearing. In addition, the Court ordered that all members of 
the Board of Education be added as parties defendant.

D. On June 11, 1969, the plaintiffs filed objections to the 
plan submitted by the defendant and moved for civil con­
tempt.

E. On June 11, 1969, the defendants moved to set aside the 
Order of the Court adding the individual Board members as 
defendants. On June 12, 1969, a similar motion was filed on 
behalf of the defendant, William E. Poe. The plaintiffs filed a 
response in opposition to these motions.

F. A hearing was held on the adequacy of the plan and on 
all pending motions on June 16, 17, and 18, 1969.

IX.
A. The Court entered an Opinion and Order dated June 20, 

1969, which was supplemented by additional findings on June 
24, 1969.

B. The Court denied the motions of the individual Board 
members to dismiss and denied plaintiffs’ motion for contempt.



41

C. The Court found that a desegregation plan had been sub­
mitted to the Board by the Superintendent, but that the Board 
struck out virtually all the effective provisions of the plan; that 
the plan filed as to pupils and teachers was nearly identical to 
the one previously found racially discriminatory; that the at­
tendance areas of several of the schools were racially gerry­
mandered; that the defendants had not met their burden to 
show that the school construction plan would promote the 
desegregation of the schools.

D. The Court found that desegregation of schools is some­
thing that has to be accomplished independent of freedom of 
transfer.

E. The Court ordered the defendants to prepare and sub­
mit by August 4, 1969, a positive plan for the desegregation 
of the Charlotte-Mecklenburg School System as originally di­
rected on April 23, 1969.

X.
A. The April 23, 1969, Order of the Court contained the 

following findings by the Court:

“ The ‘Neighborhood School’ Theory . . .

The neighborhood school concept may well be invalid for 
school administrative purposes even without regard for 
racial problems. The Charlotte-Mecklenburg School Board, 
today, for example, is transporting 23,000 students on 
school busses. First graders may be the largest group so 
transported. If a first grader lives far enough from school 
to ride a bus, the school is not part of his neighborhood.

When racial segregation was required by law, nobody 
evoked the neighborhood school theory to permit black 
children to attend white schools close to where they lived. 
The values of the theory somehow were repudiated by the 
1955 North Carolina General Assembly and still stands 
repudiated in the Pupil Assignment Act of 1955-56, which 

%



42

is quoted above. The neighborhood school theory has no 
standing to override the Constitution.

Bussing. Under North Carolina General Statutes, § § 115- 
180, the Board is expressly authorized to operate school 
busses to transport school children; the state pays bus 
expenses only for rural children and for some who have 
been annexed into the city in recent years. This apparent 
discrimination against city dwellers is reportedly under 
attack in another court. This Board already transports 
23,000 students to school every day out of the 32,000 who 
live in the area presently eligible for bus service. The 
present cost of school bussing is about $19 for bus opera­
tion plus the cost of the bus which is $4,500 per bus should 
not exceed $20 per pupil a year. In other words, it costs 
about $40 a year per pupil to provide school bus transpor­
tation, out of total per pupil school operating costs of 
about $540. The income of many black families is so low 
they are not able to pay for the cost of transportation out 
of segregated schools to other schools of their choice.

The Board has the power to use school busses for all legiti­
mate school purposes. Busses for many years were used to 
operate segregated schools. There is no reasdn except emo­
tion (and I confess to having felt my own share of emotion 
on this subject in all the years before I studied the facts) 
why school busses can not be used by the Board to pro­
vide the flexibility and economy necessary to desegre­
gate the schools. Busses are cheaper than new buildings; 
using them might even keep property taxes down.”

B. The Court found that 95% of the blacks were concentrat­
ed in the western portion of the City of Charlotte and that 
official action taken on schools, zoning and planning had con­
tributed to this concentration.

XI.
A. On May 7, 1969, a member of the Mecklenburg County 

House delegation of the North Carolina General Assembly in­



43

troduced a bill (House Bill 990, a copy of which is attached 
hereto as Exhibit B) entitled “AN ACT TO PROTECT THE 
NEIGHBORHOOD SCHOOL SYSTEM AND TO PRO­
TECT THE INVOLUNTARY BUSSING OF PUPILS OUT­
SIDE THE DISTRICT IN WHICH THEY RESIDE.” The 
Bill, as subsequently amended, was ratified on July 2, 1969 
(See Exhibit A ) , and is now codified as North Carolina Gen­

eral Statutes §115-176.1.

B. The ratified bill, which has the same title as the bill in­
troduced on May 7, 1969, provides:

1. Students cannot be excluded from any school on ac­
count of race.

2. Students shall be assigned to the school within the geo­
graphical district where the pupil resides, except for chil­
dren attending special schools or except for any reason the 
local board deems sufficient.

3. “ No student shall be assigned or compelled to attend 
any school on account of race, creed, color or national 
origin, or for the purpose of creating a balatice or ratio of 
race, religion or national origins. Involuntary bussing of 
students in contravention of this article is prohibited, and 
public funds shall not be used for any such bussing.”

4. The article does not apply in temporary situations of 
unsuitability of schools or over-crowding.

5. Nor does it apply to “ any assignment made pursuant 
to a choice made by any pupil . . . pursuant to . . .  a free­
dom of choice plan voluntarily adopted by the Board.”

XII.
The defendants State Board of Education and State Super­

intendent of Public Instruction are responsible to insure that 
the prohibitions against involuntary student assignments and 
bussing contained in North Carolina General Statutes §115- 
176.1 are complied with in the Charlotte-Mecklenburg School



44

System and other administrative units throughout the State 
and that public funds over which they have control not be used 
for any such bussing.

XIII.
Involuntary bussing and pupil assignments which are pro­

hibited by North Carolina General Statutes §115-176.1 are 
necessary devices to carry out the existing orders of this and 
other Federal Courts in North Carolina and to comply with 
the duties imposed by the Constitution upon defendants here­
in and other school officials in North Carolina. The purpose, 
motive and effect of provisions of North Carolina General 
Statutes §115-176.1 complained of herein, is to forbid these 
defendants and other school officials in North Carolina from 
complying with existing lawful orders of this and other Federal 
Courts and to forbid them from complying with the require­
ments of the Thirteenth and Fourteenth Amendments to the 
Constitution in the State of North Carolina. The provisions 
thus violate the constitutional rights of plaintiffs and others 
similarly situated.

XIV.
Plaintiffs and those similarly situated and affected, on whose 

behalf this action is brought are suffering irreparable injury 
and will suffer irreparable injury in the future by reason of the 
provisions of the Statute complained of herein. They have no 
plain, adequate or complete remedy to redress the wrongs com­
plained of herein other than this action for a declaratory judg­
ment and injunction. Any other remedy to which plaintiffs 
could be remitted would be attended by such uncertainties and 
delays as to deny substantial relief, would involve a multiplicity 
of suits and would cause further irreparable injury.

WHEREFORE, plaintiffs respectfully pray that, upon the 
filing of this Supplemental Complaint, the Court:

1. Issue a temporary restraining order restraining the de­
fendants, their agents and other persons acting in concert with 
them from giving consideration or effect to and from enforcing,



45

administering, or applying the provisions contained in North 
Carolina General Statutes §115-176.1 complained of herein;

2. Convene a three-judge District Court as required by 28 
USC § §2281 and 2284;

3. Advance this cause on the docket and order a speedy hear­
ing of this action according to law and upon such hearing:

a. Enter judgment declaring the statutory provisions com­
plained of herein void as repugnant to the Thirteenth and 
Fourteenth Amendments to the Constitution of the United 
States;
b. Enter a preliminary and permanent injunction restrain­
ing all defendants, their agents and other persons acting in 
concert with them from giving consideration or effect to 
and from enforcing, administering, or applying the com­
plained provisions of North Carolina General Statutes 
§115-176.1;

c. Allow plaintiffs their costs herein, reasonable attorneys 
fees and such other and further relief as to the Court may 
appear equitable and just.

Respectfully submitted,
Adam Stein
CONRAD 0. PEARSON 
203 1 /2  East Chapel Hill Street 
Durham, North Carolina
CHAMBERS, STEIN, FERGUSON & LANNING 
216 West Tenth Street 
Charlotte, North Carolina
JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN CHACHKIN 
10 Columbus Circle 
New York, New York 10019
Attorneys for Plaintiffs



46

THE NORTH CAROLINA GENERAL ASSEMBLY 
1969 SESSION

RATIFIED BILL 
CHAPTER 1274 

HOUSE BILL 990

AN ACT TO PROTECT THE NEIGHBORHOOD SCHOOL 
SYSTEM AND TO PROHIBIT THE INVOLUNTARY 
BUSSING OF PUPILS OUTSIDE THE DISTRICT IN 
WHICH THEY RESIDE. The General Assembly of North 
Carolina do enact:

Section 1. There is hereby created a new section of Chapter 
115 of the General Statutes to be codified as GS 115-176.1 and 
to read as follows:

“ § 115-176.1. Assignment of pupils based on race, creed, color 
or national origin prohibited. No person shall be refused ad­
mission into or be excluded from any public school in this State 
on account of race, creed, color or national origin. No school 
attendance district or zone shall be drawn for the purpose of 
segregating persons of various races, creeds, colors or national 
origins from the community.

Where administrative units have divided the geographic area 
into attendance districts or zones, pupils shall be assigned to 
schools within such attendance districts; provided, however, 
that the board of education of an administrative unit may as­
sign any pupil to a school outside of such attendance district 
or zone in order that such pupil may attend a school of a 
specialized kind including but not limited to a vocational school 
or school operated for, or operating programs for, pupils men­
tally or physically handicapped, or for any other reason which 
the board of education in its sole discretion deems sufficient. 
No student shall be assigned or compelled to attend any school 
on account of race, creed, color or national origin, or for the 
purpose of creating a balance or ratio of race, religion or nation­
al origins. Involuntary bussing of students in contravention of



47

this Article is prohibited, and public funds shall not be used for 
any such bussing.

The provisions of this Article shall not apply to a temporary 
assignment due to the unsuitability of a school for its intended 
conditions or other circumstances which, in the sole discretion 
of the School Board, require assignment or reassignment.

The provisions of this Article shall not apply to an applica­
tion for the assignment or re-assignment by the parent, guar­
dian or person standing in loco parentis of any pupil or to any 
assignment made pursuant to a choice made by any pupil who 
is eligible to make such choice pusuant to the provisions of a 
freedom of choice plan voluntarily adopted by the board of 
education of an administrative unit.”

Sec. 2. All laws and clauses of laws in conflict with this Act 
are hereby repealed.

Sec. 3. If part of the Act is held to be in violation of the 
Constitution of the United States or North Carolina, such part 
shall be severed and the remainder shall remain in full force and 
effect.

Sec. 4. This Act shall be in full force and effect upon its 
ratification.

In the General Assembly read three times and ratified, this 
the 2nd day of July, 1969.

H. P. TAYLOR, JR.
H. P. Taylor, Jr.
President of the Senate.

Philip P. Godwin
Philip P. Godwin
Speaker of the House of Representatives



48

NORTH CAROLINA GENERAL ASSEMBLY 
1969 SESSION 

HOUSE BILL 990
(Public)

Sponsors: Representatives Carson, J. Johnson, and Hege. 
Referred to: Education

May 7

A BILL TO BE ENTITLED AN ACT TO PROTECT THE 
NEIGHBORHOOD SCHOOL SYSTEM AND TO PRO­
HIBIT THE INVOLUNTARY BUSSING OF PUPILS OUT­
SIDE THE DISTRICT IN WHICH THEY RESIDE.

The General Assembly of North Carolina do enact:

Section 1. There is hereby created a new Section of Chapter 
115 of the General Statutes to be codified as GS 115-183.1 and 
to read as follows:

“ GS 115-183.1. Pupil assignment within neighborhood; in­
voluntary bussing prohibited. Notwithstanding any provisions 
of this or other Chapters, no pupil shall be assigned to a school 
outside the district in which he resides except upon the appli­
cation of his parent, guardian, or person standing in loco 
parentis as hereinbefore provided.

Pupils residing within a district where two or more schools 
are located shall be assigned to the school which is closest to 
their place of residence unless application to attend elsewhere 
is made by the parent, guardian, or person standing in loco 
parentis. Applications for assignments outside the pupils’ school 
district or to a school further from the pupils’ residence than 
another school within the district shall be determined by the 
city or county board as hereinbefore set forth.

The city or county board may, in its discretion and subject 
to provisions as hereinbefore set forth, provide transportation 
for pupils assigned either within or without the district. Provid­
ed, however, students shall not be bussed or transported out­



49

side their respective districts or to a school more distant from 
their residences than another school within the district except 
in cases where the parent, guardian, or person standing in loco 
parentis has requested such assignment as hereinbefore set 
forth. Public funds, whether from taxation or any other source, 
shall not be used to provide transportation for pupils assigned 
in contravention of this Article.”

Sec. 2. All laws and clauses of laws in conflict with this Act 
are hereby repealed.

Sec. 3. If part of the Act is held to be in violation of the Con­
stitution of the United States or North Carolina, such part 
shall be severed and the remainder shall remain in full force and 
effect.

Sec. 4. This Act shall be in full force and effect upon its 
ratification.



50

IN THE
UNITED STATES DISTRICT COURT 

FOR THE
WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION

JAMES E. SWANN, et al„ )
Plaintiffs, )

) CIVIL 
) ACTION

THE CHARLOTTE-MECKLENBURG ) NO. 1974
BOARD OF EDUCATION, et al„ )

Defendants )

ORDER
Upon motion by plaintiffs for leave to file a supplemental 

complaint and add The North Carolina State Board of Educa­
tion and Dr. A. Craig Phillips, Superintendent of Public In­
struction for the State of North Carolina as defendants and it 
appearing to the Court that good cause is shown therefor

It is ORDERED that plaintiffs’ motion for leave to file a 
supplemental complaint and to add The North Carolina State 
Board of Education and Dr. A. Craig Phillips, Superintendent 
of Public Instruction of the State of North Carolina as de­
fendants is granted.

The United States Marshal is directed to serve the supple­
mental complaint and summons upon the above named de­
fendants.

This 22 day of July, 1969.

James T. McMillan
UNITED STATES DISTRICT JUDGE



51

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION

JAMES E. SWANN, et al„ )
Plaintiffs, )

v. )
)

CHARLOTTE-MECKLENBURG BOARD )
OF EDUCATION, a public body corporate; )
W ILLIAM  E. POE; HENDERSON BELIC; ) CIVIL 
DAN HOOD; BEN F. HUNTLEY; BETSEY ) ACTION 
KELLY; COLEMAN W. KERRY, JR.; JULIA ) NO. 1974 
MAULDEN; SAM McNINCH, III; CARL- )
TON G. WATKINS; THE NORTH CARO- )
LINA STATE BOARD OF EDUCATION, a ) 
public body corporate; and DR. A. CRAIG ) 
PHILLLIPS, Superintendent of Public Instruc- ) 
tion of the State of North Carolina, )

Defendants. )

MOTION FOR LEAVE TO FILE 
SUPPLEMENTAL COMPLAINT, TO ADD ADDITIONAL 
DEFENDANTS AND FOR TEMPORARY RESTRAINING

ORDER

Plaintiffs, by their undersigned counsel, respectfully move 
the Court for leave to file a Suplemental Complaint and for a 
temporary restraining order restraining the defendants from 
giving consideration or effect to and from enforcing, admini­
stering, or applying certain provisions of North Carolina Gen­
eral Statutes §115-176.1 and as grounds therefor show the 
following: 1

1. Plaintiffs seek, by this motion, leave to file a Supple­
mental Complaint, copies of which are being forwarded this 
day to the Court together with summonses for service upon the



52

North Carolina State Board of Education and Dr. A. Craig 
Phillips, Superintendent of Public Instruction of the State of 
North Carolina, parties which the plaintiffs seek to add as 
defendants to this action. Plaintiffs have served copies of the 
Supplemental Complaint upon counsel for those defendants 
now parties to this action.

2. The Supplemental Complaint seeks injunctive and de­
claratory relief against the following prohibitions contained in 
North Carolina General Statutes §115-176.11

“ No student shall be assigned or compelled to attend any 
school on account of race, creed, color or national origin, or 
for the purpose of creating a balance or ratio of race, 
religion or national origins. Involuntary bussing of stu­
dents in contravention of this Article is prohibited, and 
public funds shall not be used for any such bussing.”

3. For reasons stated more fully in the Supplemental Com­
plaint, plaintiffs allege that the purpose, motive and effect of 
the statutory provisions complained of therein is to forbid the 
defendants, now parties to this action, and other school officials 
in the State of North Carolina from complying with existing 
lawful orders of this and other courts and to forbid them from 
complying with the requirements of the Thirteenth and Four­
teenth Amendments to the Constitution of the United States. 
Plaintiffs allege that this is so because compulsory assignments 
and involuntary bussing, prohibited by North Carolina General 
Statutes §115-176.1, are necessary devices for complying with 
the orders of this Court entered on April 23, 1969, and June 20, 
1969, and for complying with constitutional requirements.

4. Plaintiffs seek to add as parties-defendant, the North 1

1. North Carolina General Statutes §115-176.1 was enacted as Chap­
ter 1274 of the Session Laws of the 1969 North Carolina General 
Assembly which was ratified on July 2, 1969. A copy of the Rati­
fied Bill is attached to the Supplemental Complaint as Exhibit 
A.



53

Carolina State Board of Education and Dr. A. Craig Phillips, 
the Superintendent of Public Instruction. These parties are 
charged by the constitution and laws of the State of North 
Carolina with the general supervision and administration of 
the public schools and the disbursement of public funds to the 
various public schools in North Carolina. They are thus re­
quired by North Carolina law to insure that public funds are 
not spent for involuntary bussing and pupil assignments. They 
are therefore proper and necessary parties to an adjudication 
of the constitutional issues raised by the plaintiffs in the Sup­
plemental Complaint. In addition, they are proper parties to 
this proceeding because, they, together with local school of­
ficials have an affirmative duty to take active steps to dis­
establish the dual school system in Charlotte-Mecklenburg 
County and other administrative units throughout the State.

5. Plaintiffs, in their Supplemental Complaint, request that 
a three-judge Court be constituted to determine their constitu­
tional challenge to a statute of state-wide application. This 
motion for a temporary restraining order is addressed to the 
single District Court judge hearing this case pursuant to 28 
U.S.C. §2284 (3).

6. Plaintiffs allege that, unless immediately restrained, the 
defendants will apply the statutory provisions complained of 
herein and will thereby fail to comply with the orders of this 
Court of April 23 and June 20, 1969, thus causing plaintiffs 
irreparable damage. In support of this allegation, the plaintiffs 
attach hereto the affidavit of Reginald A. Hawkins, the next 
friend of plaintiffs in this action.

WHEREFORE, plaintiffs respectfully pray that they be 
granted leave to file their Supplemental Complaint, that they 
be allowed to add the North Carolina State Board of Education 
and Dr. A. Craig Phillips, Superintendent of Public Instruction 
of the State of North Carolina as defendants in this action and 
that all defendants be restrained from enforcing the complained 
of provisions of North Carolina General Statutes §115-176.1.



54

Respectfully submitted,
/ s /  Adam Stein

CONRAD D. PEARSON 
203 1/2 East Chapel Hill Street 
Durham, North Carolina

CHAMBERS, STEIN, FERGUSON & TANNING 
216 West Tenth Street 
Charlotte, North Carolina

JACK GREENBURG 
JAMES M. NABRIT, III 
NORMAN CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



55

IN THE
UNITED STATES DISTRICT COURT 

FOR THE
WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION

JAMES E. SWANN, et ah,
Plaintiffs, )

CHARLQTTE-MECKLENBURG BOARD )
OF EDUCATION, a public body corporate; )
WILLIAM E. POE; HENDERSON BELK; )
DAN HOOD; BEN F. HUNTLEY; BETSEY )
KELLY; COLEMAN W. KERRY, JR.; JULIA ) 
MAULDEN; SAM McNINCH, III; CARL- ) CIVIL 
TON G. WATKINS; THE NORTH CARO- ) ACTION 
LINA STATE BOARD OF EDUCATION, a ) NO. 1974 
public body corporate; and DR. A. CRAIG )
PHILLIPS, SUPERINTENDENT OF PUB- )
LIC INSTRUCTION OF THE STATE OF )
NORTH CAROLINA, )

Defendants. )

ANSWER OF THE DEFENDANTS, THE NORTH 
CAROLINA STATE BOARD OF EDUCATION AND 
SUPERINTENDANT OF PUBLIC INSTRUCTION 
OF THE STATE OF NORTH CAROLINA, TO THE 
SUPPLEMENTAL COMPLAINT.

(1) Answering the allegations of Paragraph I of the Supple­
mental Complaint, these answering defendants allege that the 
order allowing the plaintiffs to file a supplemental complaint 
is based upon a motion which was filed in the Office of the 
Clerk of the Federal Court for the Western District on July 
22, 1969, and the order of the Judge of the District Court was 
also filed on the same date, July 22, 1969, and said order allow­
ing said Supplemental Complaint to be filed is void, invalid and



,56

contrary to due process of law for that the North Carolina 
State Board of Education and the State Superintendent of 
Public Instruction were never given an opportunity to appear 
before the Court and resist said Motion, but, to the contrary, 
the same is an exparte order entered without service upon the 
said defendants of any notice or copy of said motion prior to 
the granting of said order; it is admitted that there is quoted 
in Paragraph I of the Supplemental Complaint a portion of 
Chapter 1274 of the Session Laws of 1969 of the General As­
sembly of this State; it is denied that the plaintiffs are entitled 
to any preliminary and permanent injunction as against these 
State defendants or that the plaintiffs are entitled to a declara­
tory judgment as against these defandants.

(2) Answering the allegations of Paragraph II of the plain­
tiffs’ Supplemental Complaint, it is denied that this Court has 
jurisdiction as against these State defendants under the Federal 
statutes cited in said paragraph or under the constitutional pro­
visions cited in said paragraph; it is denied that G. S. 115-176.1 
is unconstitutional and invalid or that the plaintiffs are entitled 
to any declaratory judgment or the convening of a 3-judge 
federal court; the allegations of Paragraph II are, therefore, 
untrue, and are denied.

(3) The allegations of Paragraph III are untrue and are 
denied except the allegation as to the status of the plaintiffs 
being the same plaintiffs who instituted the original action; it 
is denied that the plaintiffs are entitled to maintain a class 
action as against these State defendants.

(4) Answering the allegations of Paragraph IV, these State 
defendants have nothing to do with the defendants named as 
the Charlotte-Mecklenburg Board of Education and the in­
dividual members thereof, and, therefore, are not required to 
answer the allegations of subparagraph (a) of Paragraph IV 
of the Complaint; it is alleged, therefore, that the duties of 
North Carolina State Board of Education and of Dr. A. Craig 
Phillips are fixed by State statutes, and, therefore, the allega­
tions of subparagraphs (b) and (c) are denied.



57

(5) The allegations of Paragraph V are admitted.
(6) The allegations of Paragraph VI are admitted.
(7) Answering the allegations of Paragraph VII, these State 

defendants allege that the same relate to a motion for further 
relief filed against the Charlotte-Mecklenburg Board of Educa­
tion, hearings on same, orders to submit plans of desegregation 
and matters with which these State defendants are not con­
cerned, and these State defendants allege that they are not re­
quired to answer said Paragraph VII.

(8) The allegations of Paragraph VIII of the Complaint 
relate to matters with which these State defendants are not 
concerned and of which they have no knowledge or informa­
tion sufficient to form a belief as to the truth of same, and as 
to these State defendants the allegations of said paragraph are, 
therefore, denied.

(9) Answering the allegations of Paragraph IX , these State 
defendants allege that said allegations relate to matters that 
these defendants are not concerned with and with which 
these State defendants have not knowledge or information 
sufficient to form a belief to form the truth of same and as to 
these defendants said paragraph is, therefore, denied.

(10) Answering the allegations of Paragraph X , the State 
defendants allege that whatever appears in the orders of the 
Court previous to the filing of this Supplemental Complaint are 
matters or record, and, therefore, they are not required to an­
swer as to same.

(11) Answering the allegations of Paragraph X I, these State 
defendants allege that the General Assembly of North Carolina 
at its Session of 1969 enacted into law an Act which is now 
codified as G. S. 115-176.1 and that said Act was ratified on 
July 2, 1969; that said Act speaks for itself as to its contents, 
and except as herein admitted the allegations of Paragraph 
X I are untrue and are denied.

(12) The allegations of Paragraph X II are untrue and are, 
therefore, denied.



58

(13) The allegations of Paragraph XTII are untrue and are, 
therefore, denied.

(14) The allegations of Paragraph X IV  are untrue and are, 
therefore, denied.

WHEREFORE, having fully answered, these State de­
fendants pray the Court that this action as to the State de­
fendants be dismissed, that the plaintiffs take nothing by their 
action as to these State defendants and that the State defen­
dants have and recover their costs to be taxed by the Clerk of 
this Court.

Robert Morgan
Attorney General of North Carolina
Ralph Moody
Deputy Attorney General
Andrew A. Vanore, Jr.
Staff Attorney
P. O. Box 629
Justice Building
Raleigh, North Carolina 27602



59

IN THE
UNITED STATES DISTRICT COURT 

FOR THE
WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION
JAMES E. SWANN, et ah, )

Plaintiffs, ) 
v. )

CHARLOTTE-MECKLENBURG BOARD \ 
OF EDUCATION, a public body corporate;  ̂
WILLIAM E. POE; HENDERSON BELK; ' 
DAN HOOD; BEN F. HUNTLEY; BETSEY 
KELLY; COLEMAN W. KERRY, JR.; JULIA 
MAULDEN; SAM McNINCH, III; CARL­
TON G. WATKINS; THE NORTH CARO­
LINA STATE BOARD OF EDUCATION, a ' 
public body corporate; and DR. A. CRAIG ' 
PHILLIPS, Superintendent of Public Instruc-  ̂
tion of the State of North Carolina, '

Defendants, . 
and '

HONORABLE ROBERT W. SCOTT, Gover- ) 
nor of the State of North Carolina; HONOR- ) 
ABLE A. C. DAVIS, Controller of the State ) 
Department of Public Instruction; HONOR- ) 
ABLE WILLIAM K. McLEAN, Judge of the ) 
Superior Court of Mecklenburg County; TOM ) 
B. HARRIS; G. DON ROBERSON; A. ) 
BREECE BRELAND; JAMES M. POSTELL; ) 
WILLIAM E. RORIE, JR.; CHALMERS R. ) 
CARR; ROBERT T. WILSON; and the CON- ) 
CERNED PARENTS ASSOCIATION, an un- ) 
incorporated association in Mecklenburg Coun- ) 
ty; JAMES CARSON and WILLIAM H. ) 
BOOE, )

Additional )
Parties-Defendant. )

CIVIL 
ACTION 
NO. 1974



60

MOTION TO ADD ADDITIONAL PARTIES 
DEFENDANT AND FOR FURTHER RELIEF

On February 5, 1970, this Court entered an order directing 
the Charlotte-Mecklenburg Board of Education and the in­
dividual members of the Board to proceed immediately to 
desegregate the public schools of Charlotte-Mecklenburg Coun­
ty. The Court directed that students be assigned to the various 
schools under plans presented and adopted by the Board and a 
plan prepared by the Court’s consultant, Dr. John A. Finger. 
The order provided for changing attendance zones of some 
schools, pairing of some schools, and transportation of students 
living beyond “ walking distance” from the schools to which 
assigned. The order further directed that the plan be imple­
mented for elementary schools no later than April 1, 1970 and 
for secondary schools no later than May 4, 1970. The School 
Board was specifically directed to begin immediately with steps 
to implement the plan.

Prior to the filing of the order on February 5, 1970, Tom B. 
Harris, G. Don Roberson, A. Breece Breland, James M. Pos­
ted, William E. Rorie, Jr., Chalmers R. Carr, and Robert T. 
Wilson, on their behalf and on the behalf of the Concerned 
Parents Association, an unincorporated association, brought a 
proceeding in the Superior Court of Mecklenburg County, by 
their attorney, William H. Booe, to obstruct and prevent the 
School Board from implementing the orders directed by this 
Court. They obtained from the Superior Court of Mecklenburg 
County an ex parte order specifically enjoining the Superin­
tendent from implementing the order of this Court directing 
the Board to pay the expenses and fees of the Court consultant.

Following the order of February 5, 1970, Tom B. Harris, G. 
Don Roberson and others of the Concerned Parents Associa­
tion have sought and are seeking by various means to obstruct 
and prevent implementation of the Court’s orders. On February 
12, 1970, they obtained fcom the Honorable William K. M c­
Lean, Judge Presiding in the Superior Court of Mecklenburg 
County, an order enjoining the School Board from spending



61

any funds to purchase and operate school buses as directed by 
this Court.

The Honorable Robert II. Scott, Governor of the State of 
North Carolina, on February 11 and 12, 1970, objected to the 
Court’s order and directed that no public funds, state or local, 
be expended for the purpose of implementing the order. The 
Honorable Dr. A. Craig Phillips, State Superintendent of 
Public Instruction, and the North Carolina State Board of 
Education, defendants herein, joined with the Governor in 
objecting to the Court’s order and in directing that no public 
funds be used for the purpose of implementing the order.

On February 6, 1970, Honorable James Carson, a member of 
the Mecklenburg Delegation to the North Carolina House of 
Representatives, threatened to and is preparing to file similar 
proceedings in the State Court of North Carolina to obstruct 
and thwart the enforcement of the Court’s orders.

These parties, along with divers others, are seeking to ob­
struct and prevent implementation of the Court’s orders direct­
ing compliance by the school authorities with their constitu­
tional obligations.

Despite the Court’s directive to the School Board to pro­
ceed forthwith with all necessary steps to implement the order, 
the School Board, the State Superintendent and the State 
Board of Education have failed to do so. Plaintiffs are advised 
that no efforts have been made to secure the necessary buses 
for transporting students as directed by the Court. Plaintiffs 
are also advised that such buses as may be necessary can be 
ordered and manufactured by the time directed by the Court 
for implementation of the plan. The failure of the School Board 
to act now in securing the necessary facilities for transportation 
may prevent desegregation of the schools in the time directed.

Plaintiffs are advised, believe and so allege that the activities 
and conduct of the defendants and each of them are pursuant 
to a design to thwart, impede and prevent desegregation of the 
public schools of Charlotte-Mecklenburg County and that the



62

acts, activities and conduct of the defendants were calculated 
and intended to incite disobedience of the law and the over­
throw of law and order and to coerce, intimidate, and compel 
school officials from performance of their constitutional re­
sponsibilities to desegregate the public schools of this system.

In order to insure full implementation of the Court’s order 
within the time directed, plaintiffs, by their undersigned coun­
sel, respectfully move the Court that the following parties be 
added as parties-defendant in this proceeding:

Honorable Robert H. Scott, Governor of the State of North 
Carolina;

Honorable A. C. Davis, Controller of the State Department 
of Public Instruction;

Honorable William K. McLean, Judge of the Superior Court 
of Mecklenburg County;

Tom B. Harris, G. Don Roberson, A. Breece Breland, James 
M. Posted, William E. Rorie, Jr., Chalmers R. Carr, Robert T. 
Wilson, and the Concerned Parents Association, an unincorpor­
ated association in the Mecklenburg County;

James Carson and William H. Booe.

Plaintiffs further pray the Court for a temporary and per­
manent injunction dissolving the injunctive orders of the Sup­
erior Court of Mecklenburg County entered in the proceeding 
of Tom B. Harris, et al. v. William C. Self, et al., 70 CVS 1097, 
and temporarily and permanently restrain any further proceed­
ings in the action.

Plaintiffs further pray the Court for a temporary and per­
manent injunction against all defendants and all other parties 
having notice of the Court’s order enjoining all parties in this 
action and all parties having notice of the orders of this Court 
from initiating or proceeding with any action in any State 
Court which has the purpose or effect of interfering with out­
standing orders in this cause.



63

Plaintiffs further pray that the Court enter a temporary and 
permanent injunction restraining the Governor, the State 
Board of Education, the Controller of the State Department of 
Public Instruction, and the State Superintendent of Public 
Instruction from denying State funds or taking any other steps 
which would prevent or tend to prevent the implementation of 
the orders of this Court.

Plaintiffs further pray the Court for a temporary and per­
manent injunction directing the local Board of Education, its 
members individually, the Governor of the State, the State 
Board of Education, the State Superintendent of Public In­
struction, and all other persons having any authority or re­
sponsibility in the administration of the public schools in 
Charlotte-Mecklenburg County to proceed forthwith with all 
necessary steps to implement the orders of this Court, including 
the provision requiring transportation of students living more 
than “ walking distance” from the schools to which they are 
assigned. Plaintiffs further pray the Court for a temporary and 
permanent injunction restraining all defendants from taking 
any steps or action which would inhibit or prevent or tend to 
prevent compliance with the orders of this Court.

Plaintiffs further pray the Court that they be allowed their 
costs in this proceeding and reasonable counsel fees.

Plaintiffs further pray that the Court direct the United 
States Marshal to personally serve a copy of the complaint, the 
amended complaint, and all orders, including the injunctive 
order prayed for herein, upon all defendants named herein.



64

Respectfully submitted,

CONRAD O. PEARSON 
203 1/2 East Chapel Hill Street 
Durham, North Carolina

CHAMBERS, STEIN, FERGUSON AND FAN­
NING
216 West Tenth Street 
Charlotte, North Carolina

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



65

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division 
Civil Action No. 1974

JAMES E. SWANN, et al,
Plaintiffs,

-vs-

CHARLOTTE-MECKLENBURG B O A R D  
OF EDUCATION, a public body corporate; 
W ILLIAM  E. POE; HENDERSON BELK; 
DAN HOOD; BEN F. HUNTLEY; BETSEY 
KELLY; COLEMAN W. KERRY, JR.; JULIA 
MAULDEN; SAM McNINCH, III; CARL­
TON G. WATKINS; THE NORTH CARO­
LINA STATE BOARD OF EDUCATION, a 
public body corporate; and DR. A. CRAIG 
PHILLIPS, Superintendent of Public Instruc­
tion of the State of North Carolina,

Defendants,
and

HONORABLE ROBERT W. SCOTT, Gover­
nor of the State of North Carolina; HONOR­
ABLE A. C. DAVIS, Controller of the State 
Department of Public Instruction; HONOR­
ABLE WILLIAM K. McLEAN, Judge of the 
Superior Court of Mecklenburg County; TOM 
B. HARRIS; G. DON ROBERSON; A. 
BREECE BRELAND; JAMES M. POSTELL; 
WILLIAM E. RORIE, JR.; CHALMERS R. 
CARR; ROBERT T. WILSON; and the CON­
CERNED PARENTS ASSOCIATION, an un­
incorporated association in Mecklenburg Coun­
ty; JAMES CARSON and W ILLIAM H. 
BOOE,

Additional Parties-Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER



66

Upon motion duly made, IT  IS HEREBY ORDERED that 
the following persons and organizations described in the peti­
tion of the plaintiffs as additional parties-defendant be, and 
they are hereby made parties herein:

HONORABLE ROBERT W. SCOTT, Governor of the State 
of North Carolina

HONORABLE A. C. DAVIS, Controller of the State De­
partment of Public Instruction

HONORABLE W ILLIAM  K. McLEAN, Judge of the Sup­
erior Court of North Carolina

TOM B. HARRIS, Charlotte, North Carolina

G. DON ROBERSON, Charlotte, North Carolina

A. BREECE BRELAND, Charlotte, North Carolina

JAMES M. POSTELL, Charlotte, North Carolina

W ILLIAM  E. RORIE, JR., Charlotte, North Carolina

CHALMERS R. CARR, Charlotte, North Carolina

ROBERT T. WILSON, Charlotte, North Carolina

CONCERNED PARENTS ASSOCIATION, an unincorpor­
ated association in Mecklenburg County, North Carolina

JAMES H. CARSON, JR., Attorney, Charlotte, North Caro­
lina

W ILLIAM  H. BOOE, Attorney, Charlotte, North Carolina

It is directed that service of the following documents be 
made immediately by certified mail, return receipt requested, 
upon the additional parties hereby made:

1. MOTION TO ADD ADDITIONAL PARTIES DEFEN­
DANT AND FOR FURTHER RELIEF, with attached 
POINTS OF AUTHORITY, served by plaintiffs on Feb­
ruary 13, 1970.

2. NOTIFICATION AND REQUEST FOR DESIGNA-



67

TION OF THREE-JUDGE COURT, dated February 19, 
1970, including exhibits referred to therein, as follows:

Exhibit A— OPINION AND ORDER filed December
1, 1969.

Exhibit B— ORDER filed February 5, 1970.

Exhibit C— ORDER filed December 2, 1969.

Exhibit D— Complaint, amended complaint and two 
orders entered by Judge William K. McLean on Feb­
ruary 12, 1970, in suit pending in the General Court of 
Justice, Superior Court Division, Mecklenburg County, 
North Carolina, bearing No. 70-CVS-1097.

Exhibit E— Statement made by Governor Robert W. 
Scott on February 11, 1970.

Exhibit F— Letter dated February 12, 1970, written by 
Governor Robert W. Scott to Dr. W. L. Turner, Direc­
tor of the North Carolina Department of Administra­
tion.

Exhibit G— Statement made by Dr. A. Craig Phillips on 
February 11, 1970.

3. DESIGNATION OF THREE-JUDGE COURT, filed 
February 24, 1970.

The plaintiffs are directed to prepare and file on or before 
Monday, March 2, 1970, proposed findings of fact and con­
clusions of law and a proposed order, and a brief in support of 
their position.

The other parties are directed to prepare and file on or be­
fore Friday, March 6, 1970, proposed findings of fact and con­
clusions of law and a proposed order, and a brief in support 
of their position.

If there is any additional evidence which any party desires 
to introduce by deposition or affidavit, the court will receive 
such evidence, in written form, up to and including Friday,



68

March 6, 1970. It is not contemplated that any more oral 
testimony in a court hearing will be necessary.

The hearing before the three-judge court will not be an 
evidentiary hearing, but will be a hearing based upon the record 
which has been developed by the time of the hearing.

This the 25th day of February, 1970.

James B. McMillan 
United States District Judge



69

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division

JAMES E. SWANN, el al.,
Plaintiffs,

CHARLOTTE-MECKLENBURG B O A R D  
OF EDUCATION; NORTH CAROLINA 
STATE BOARD OF EDUCATION; DR. A.
CRAIG PHILLIPS, Superintendent of Public 
Instruction of the State of North Carolina, et 
als.,

Defendants.
AND

HONORABLE ROBERT H. SCOTT, Gover­
nor of the State of North Carolina; HONOR­
ABLE A. C. DAVIS, Controller of the State 
Department of Public Instruction; HONOR­
ABLE W ILLIAM  K. McLEAN, Judge of the 
Superior Court of Mecklenburg County, et als.,

Additional Parties Defendant.

ANSWER TO MOTION TO ADD ADDITIONAL PARTIES 
DEFENDANT AND FOR FURTHER RELIEF

THE DEFENDANTS, THE NORTH CAROLINA STATE 
BOARD OF EDUCATION, DR. A. CRAIG PHILLIPS, 
SUPERINTENDENT OF PUBLIC INSTRUCTION, ROB­
ERT H. SCOTT, GOVERNOR OF THE STATE OF NORTH 
CAROLINA, A. C. DAVIS, CONTROLLER OF THE 
STATE DEPARTM ENT OF PUBLIC INSTRUCTION, 
AND W ILLIAM  K. McLEAN, JUDGE OF THE SUP­
ERIOR COURT OF MECKLENBURG COUNTY (herein­
after referred to as: STATE OFFICIALS), ANSWERING 
THE MOTION TO ADD ADDITIONAL PARTIES DE­
FENDANT, AND FOR FURTHER RELIEF, FOR THEIR 
ANSWERS ALLEGE:

)
)
)
)
)
)
)
)
) CIVIL 
) ACTION 
) NO. 1974 
)



70

(1) It is admitted that on February 5, 1970, the District 
Court of the United States for the Western District of North 
Carolina entered an order directing the Charlotte-Mecklenburg 
Board of Education to desegregate the public schools admin­
istered by said Board; it is further admitted that the Court 
ordered that students be assigned to the various public school 
facilities of said Board under plans adopted by the Board and 
by the Court’s consultant, and all orders and plans are referred 
to and made a part of this allegation not for the purpose of 
acquiescing therein or admitting the validity thereof, but for 
the purpose of showing the action taken by the Court and the 
action taken by the Board; it is denied that any action to which 
the motion of the plaintiffs refers was taken by the Charlotte- 
Mecklenburg Board of Education as a voluntary act on the 
part of said Board, but, to the contrary, these defendants allege 
that each such action taken was compelled by orders of the 
Court; the plaintiffs themselves in their allegations refer to 
orders of the Court and directives of the Court.

(2) It is admitted that a group of individuals, an unin­
corporated association by the name of “ Concerned Parents As­
sociation” , instituted an action in the Superior Court of Meck­
lenburg County and obtained an order from a Superior Court 
judge enjoining the superintendent from paying expenses and 
fees of the Court consultant; that said civil action now pending 
in the Superior Court of Mecklenburg County and all its plead­
ings, orders and proceedings are hereby referred to and made 
a part of this Answer; it is further alleged that said “ Concerned 
Parents Association”  had a right under the laws of the State 
of North Carolina to institute said action, which is related to 
the use of public funds, including the proceeds of taxes collect­
ed from and paid by members of the said Association and other 
persons similarly situated; it is admitted that said civil action 
in the Superior Court of Mecklenburg County was instituted 
prior to the filing of the Order of the District Court of the 
United States on February 5, 1970.

(3) It is admitted that on February 12, 1970, the “ Concern­



71

ed Parents Association” obtained an order from the Judge of 
the Superior Court of Mecklenburg County, enjoining the 
Charlotte-Mecklenburg Board of Education from spending any 
public funds to purchase and operate school buses for the pur­
pose of redressing any racial imbalance. It is denied, however, 
that said Order was obtained to obstruct the enforcement of 
any lawful order of the District Court of the United States, but, 
to the contrary, said Order was obtained to prevent the busing 
of school children for the purpose of changing the racial com­
position of the student enrollment in specific public schools by 
compelling school children to attend a specific public school 
contrary to the will of their parents solely because of the race 
of such children, contrary to the Fourteenth Amendment to the 
Constitution of the United States as construed in BROWN v. 
BOARD OF EDUCATION, 347 U. S. 483, 98 L. ed. 873, 74 
S. Ct. 686, 38 ALR 2d 1180, and contrary to the Civil Rights 
Act of 1964, and Chapter 1274 of the Session Laws of 1969, 
enacted by the General Assembly of North Carolina; that the 
Superior Court of Mecklenburg County had a legal right to 
pass upon the statutes and status of busing pupils and to enter 
the order therein complained of by the plaintiffs, and the 
prosecution of the action in the State courts is not subject to 
injunction or restraint on the part of the District Court of the 
United States; that the action in the State courts is lawfully 
brought therein to enjoin the unlawful expenditure of State 
funds and County funds, these being a matter of State law over 
which the United States District Court has no jurisdiction.

(4) It is admitted that Robert H. Scott, Governor of the 
State of North Carolina, ordered and directed that no public 
State funds be expended for the busing of public school pupils 
to redress racial imbalance as he had a right and duty to do 
under the Executive Budget Act of the State of North Carolina 
inasmuch as he was dealing with and preventing an unlawful 
expenditure of the State’s public funds which are subject to the 
control of the State of North Carolina and its administrative 
authorities; that the lawful use which may be made of such 
funds is a matter of State law and involves no question arising



72

under the Constitution or laws of the United States; it is fur­
ther admitted that the State Superintendent of Public Instruc­
tion of North Carolina and the defendant, North Carolina State 
Board of Education, approve the action taken by the Gover­
nor of North Carolina in the use of State funds, which, it is 
alleged, do not belong to the Federal Government, and which 
are not subject to allocation by agents of the Federal Govern­
ment; that said action was taken pursuant to the statutes 
above referred to, which prohibit the use of the said State funds 
for the busing of public school children for the mere purpose 
of redressing racial imbalance.

(5) That these defendants, State officials, do not know the 
motives and intentions of the Honorable James Carson, a 
member of the House of Representatives of the State of North 
Carolina, and, therefore, for lack of information and belief 
deny the allegations related to the Honorable James Carson 
and also deny the allegations as to the motives and intentions 
of other persons in relation to said Court order for lack of 
information and belief.

(6) It is denied that the North Carolina State Board of 
Education and the State Superintendent of Public Instruction 
have any statutory duties or any duties at all in regard to the 
transportation of school children; it is further alleged that the 
local boards of education are under no legal duty to provide 
transportation for school children to, from and between their 
homes and the schools in which said children are enrolled; that 
said Board of Education has no authority or control over the 
transportation of pupils in the public school system, and 
neither the Governor of North Carolina nor the North Caro­
lina State Board of Education is required or permitted to al­
locate funds for public school transportation of pupils for pur­
poses prohibited by Federal and State statutes; that these de­
fendants, State officials, do not know the intentions of the 
Charlotte-Mecklenburg Board of Education as to providing 
school buses for the transportation of school pupils to redress 
racial imbalance, and, therefore, deny all allegations relating 
to said subject.



73

(7) It is denied that these defendants are seeking to pre­
vent desegregation of the public schools administered by the 
Charlotte-Mecklenburg Board of Education or to thwart any 
proper activity of this Court; it is further denied that these 
defendants are inciting disobedience of the law and seeking 
the overthrow of law and order or to coerce, or compel, school 
officials to desist or refrain from any duty imposed upon them 
by the Constitution or laws of the United States; that these 
defendants, State officials, are informed and believe, and so 
allege, that they have no authority to and may not lawfully be 
required to use State public funds contrary to the provisions of 
Chapter 1274 of the Session Laws of 1969, which expressly pro­
hibits the use of such funds for the purpose of financing the 
transportation of public school children to, from and between 
their homes and the school wherein they are enrolled for the 
purpose of changing the ratio of the children of the respective 
races attending such schools or any other school; that A. C. 
Davis is Controller of the State Board of Education and not 
the Controller of the State Department of Public Instruction; 
that the said Davis is an administrative officer only, and, as 
such, does not determine the policy of the State of the ex­
penditure of public State funds for public school transportation 
and is not a proper and necessary party to this action; that the 
Governor of North Carolina is not a proper and necessary party 
to this action and should not be added as a party defendant, 
and such addition would constitute a suit against the State as 
prohibited by the Eleventh Amendment to the Constitution of 
the United States; that the Honorable William K. McLean is 
a Judge of the Superior Court of the State of North Carolina, 
and, as such, has the lawful right, authority and duty to hear 
and determine any and all civil actions instituted in any such 
Court over the sessions of which he is lawfully assigned to pre­
side; that the action instituted on or about February 12, 1970, 
in the Superior Court of Mecklenburg County, to which refer­
ence is made in the motion of the plaintiffs in the present 
action, was lawfully instituted therein and it is the lawful right, 
authority and duty of the Honorable William McLean, or such



74

other judge as may from time to time be lawfully assigned to 
preside over the sessions of said Court, to hear and determine, 
subject to lawful appellate review, all issues of law and fact 
which have arisen or may arise in such action, and he may not 
lawfully be restrained from the lawful exercise of such juris­
diction and authority by the Order of this Court; that under 
the appropriate Federal statute of the United States Code (28 
USCA 2283) he is immune from any restraint on the part of 
this Court which would prohibit him from hearing and law­
fully determining the issues of law and fact in civil actions law­
fully initiated in the said Superior Court, including said action 
to which the Motion of the plaintiffs in this action refers, and 
he is immune from restraint on the part of the Federal Court 
in the exercise by him of the said jurisdiction and authority to 
hear and determine, subject to lawful appellate review, all is­
sues of law and fact arising in the said action, and, therefore, he 
may not lawfully be made a party to this action in this Court.

(8) That the plaintiffs are not entitled to a temporary or 
permanent injunction restraining the actions of these defen­
dants, said State officials, nor are the plaintiffs entitled to any 
mandatory injunction requiring these defendants, State of­
ficials, to proceed with providing transportation to or for public 
school students; that all allegations as to issuance of injunctions 
relating to these defendants, State officials, are untrue and are 
denied; it is denied that as to these defendants, State officials, 
the plaintiffs are entitled to any costs or counsel fees.

WHEREFORE, having fully answered said Motion, these 
defendants, State officials, pray the Court as follows:

(a) That as to these defendants, State officials, the said 
Motion be dismissed;

(b) that all applications and requests for injunctions relating 
to the busing of the public school pupils for the redress of racial 
imbalance, or for any other purpose, as to these defendants, be 
dismissed and denied;

(c) that the plaintiffs’ request for costs and counsel fees as 
to these defendants be denied;



75

(d) for such other and further relief as to the Court may 
seem proper and just, and that these defendants recover their 
costs incurred herein.

Robert Morgan
Attorney General of North Carolina
Ralph Moody
Deputy Attorney General
Andrew A. Vanore, Jr.
Assistant Attorney General



76

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division

James E. Swann, et al, )
Plaintiffs, )

j CIVIL 1974
The Charlotte-Mecklenburg Board of Educa- )
tion, et al, )

Defendants. )
DEPOSITION OF:
JAMES H. CARSON, JR.
March 11, 1970

By consent this deposition was taken on March 11, 1970, at 
11:15 A.M., in the offices of Chambers, Stein, Ferguson & 
Lanning, Attorneys at Law, 216 W. 10th Street, Charlotte, 
North Carolina.

By consent all objections except as to the form of the ques­
tion are waived and objections will be made and ruled on at the 
time of trial. With the consent of all counsel, signature is waiv­
ed.
APPEARANCES:

Plaintiffs—Julius L. Chambers, Esq. 
Attorney at Law 
Charlotte, North Carolina
Adam Stein, Esq.
Attorney at Law 
Charlotte, North Carolina

Defendants—William J. Waggoner, Esq. 
Attorney at Law 
Charlotte, North Carolina

JAMES H. CARSON, Jr.,
having first been duly sworn, was examined and testified as 
follows:



77

BY MR. CHAMBERS:

Q Would you state your name, please?

A James H. Carson, Jr.

Q What is your address, Mr. Carson?

A 419 Ellsworth Road, Charlotte.

Q What is your occupation?
A I am an attorney.

Q Did you serve as a member of the Mecklenburg delegation 
to the North Carolina Legislature during the 1969 session?

A Yes, I served as a member from the 36th House District 
which is composed of only Mecklenburg County.

Q How long have you served in the Legislature?
A I was elected for the first time in 1966 and re-elected in 1968. 

I ’m still in office.

Q Did you during the session of the 1969 Legislature have oc­
casion to propose a bill that has now been enacted and is 
known as North Carolina General Statute Section 115-176.1?

A Yes, I did.
Q I show you a document which we would like to have marked 

as Plaintiff’s Exhibit 1 for Mr. Carson’s deposition. (Carson 
Deposition Exhibit #1 marked for identification and attach­
ed to all copies of this deposition.) I ’ll ask you if you would 
state whether that is a copy of the bill that you introduced.

A The exhibit consists of several items, one of which is a copy 
of the bill I introduced.

Q Would the last two pages of that exhibit be the bill as you 
originally introduced it?

A Yes, that’s correct, the one entitled House Bill DRH 255.

Q And they are the last two pages on the exhibit?



78

A Yes, that’s correct.
Q The third page from the back, which is the fifth page in the 

exhibit from the front, headed Amendment, dated June 16, 
’69, would this be a proposed amendment that was also in­
corporated in the bill?

A Yes, it would.
MR. WAGGONER: May I have a copy of this?
MR. CHAMBERS: I’m sorry.

Q Now, the third and fourth pages from the front, would you 
state what these two pages are?

A This is a House Committee Substitute for House Bill 990, 
which is the same bill.

Q Is it amended in any way from the bill as you originally 
introduced it?

A Yes. A Committee Substitute is used when a bill is rewritten 
to any degree to get a Committee Substitute rather than the 
original bill.

Q What changes were made in the Committee Substitute?
A I would have to read both bills to tell you the exact changes. 

You can see they are both here and the changes included in 
each of them were made in the Committee Substitute.

Q The first page and the second page of this exhibit, are these 
also amendments that were added to the bill?

A Yes. These are two amendments that were put into the Com­
mittee Substitute when it was considered in the Senate.

Q And were these amendments as indicated on the first two 
pages adopted by the House and the Senate?

A Yes, they were. They were adopted by the Senate and the 
House concurred in the Senate amendments.

Q Now, when did you initially propose the bill that sub­
sequently became General Statute 115-176.1?



79

A By proposed, do you mean when did I introduce it?
Q Yes.
A I do not recall the exact date.

Q Do you recall the month?

A Of my own knowledge, no, I do not recall the month.

Q I show you another document which we would like marked 
as Plaintiff’s Exhibit 2 for purposes of Air. Carson's deposi­
tion. (Carson Deposition Exhibit #2 marked for identifica­
tion and attached to all copies of this deposition.) Now, this 
document on the first page contains a news article headed 
“House Gets Busing Bill”, June 12, 1969. To your know­
ledge would the bill have been presented to the House in 
June of 1969?

A To the best of my knowledge it was before the month of 
June when it was first introduced, either in April or May 
and I don’t recall which month.

Q Do you recall whether it was subsequent to the Court’s order 
entered in this case on April 23, 1969?

A No, I do not recall. I believe it was subsequent to that but 
I do not recall.

Q Now, as initially proposed, what was your purpose or what 
were you trying to remedy in proposing this bill?

MR. WAGGONER: Objection.

A The purpose of the bill, I think, could be best summed up 
by the title of the bill, that is, a bill to protect the neighbor­
hood school system and to prohibit the involuntary busing 
of pupils outside the district in which they reside.

Q As initially proposed did you intend to prohibit considera- 
ation of race in the assignment of pupils?

MR. WAGGONER: Objection.



80

A The original bill does not mention race. It doesn’t prohibit 
it or do anything else with it.

Q Are you familiar with the present provisions of the State 
in providing transportation for students?

A I ’m vaguely familiar with them, yes. I ’m not an expert on 
the subject.

Q Do you know whether the State presently provides trans­
portation for students?

A Yes, I do know that under certain circumstances they do.

Q Do you recall what circumstances?

A To the best of my knowledge they provide transportation 
for pupils outside cities who live a mile and a half or more 
than a mile and a half from the school to which they are 
assigned and inside of cities in areas which have been recent­
ly incorporated, I believe since ’57, the same provision 
applies.

Q Are you familiar with the North Carolina constitutional pro­
vision that required separation of the races in public educa­
tion?

A Yes, I am.

Q Are you familiar with the previous practices of this School 
Board in providing transportation of students on a segregat­
ed basis?

A No, I ’m really not familiar with it. I imagine it was done but 
this was some years ago and I ’m not that familiar with it 
now.

Q Do you know whether the School Board has provided trans­
portation, this School Board, for Negro students going to 
Negro schools and white students going to white schools?

A No, I do not. I have never been on a school bus myself. I 
lived near the school I attended and I do not know.



81

Q You do know we have had segregated schools in this system.

A Yes, I do.

Q And you do know that transportation was provided during 
the period that wre had segregated schools.

A I suppose outside of the city it was. Of my own knowledge, 
though, I do not know.

Q I show you a copy of the exhibit that was attached to the 
supplemental complaint filed by the plaintiffs in this case 
w’hich shows the bill with the date May 7. Does that refresh 
your recollection as to the date of the bill?

A No. I would assume May 7th is correct because it’s stamped 
on the bill but I do not recall of my own personal knowledge.

Q You don’t have any reason to believe that it wasn’t May 7.

A No, I do not.

Q Now, do you know the number of students in Mecklenburg 
County who are transported daily to school?

A No, I do not.

Q Do you know the number of pupils transported to school 
daily across the State of North Carolina?

A No, I do not.

Q Do you know the average mileage traveled by buses each 
day in transporting students to school in Mecklenburg 
County?

A I have no idea what that would be.

Q Now, did you know the number of students or the average 
miles per day traveled when you introduced this bill?

A The average number of students in Mecklenburg County?

Q Yes,

A No, I did not.



m

Q Or the average number in the State?
A No, I did not.
Q Or the average mileage?
A No, I did not.
Q Do you know the purpose of the State in providing trans­

portation for students?
A I would assume that the purpose is to provide transportation 

primarily for the rural children who live some distance from 
school and who would find it difficult to arrange their own 
transportation.

Q Do you know how long the State has been providing trans­
portation at public expense?

A Ever since I can remember, which would be twenty-five or 
so years. I’m sure it’s been longer than that, though.

Q The proposed amendment that you submitted June 16, 1969, 
what was the purpose of this amendment?

MR. WAGGONER: Objection.

A This amendment, as best I recall, was aimed at providing 
some type of temporary assignment whereby if a school 
were damaged by fire or something else it would require a 
temporary assignment and would require pupils to be trans­
ported to another school district.

MR. WAGGONER: Move to strike.

Q Look at the first two pages of Exhibit 1. The first proposed 
amendment would strike the balance of the sentence on 
Page 1, Lines 14 and 15, following the word “ various” and 
would add “ races, creeds, colors or national origins from 
the community” .

A Yes, I’m looking at it.

Q Do you know the purpose of that amendment?



83

A As best I recall, this is a grammatical correction. I  don’t 
have House Bill 990 as it was approved by the House as 
amended by the Senate, but I believe this did not change the 
substance of the bill and was a grammatical correction.

Q Would you look at the second amendment on the same 
page?

A Yes.

Q What was the purpose of that amendment?

MR. WAGGONER: Objection.

A I can only give you the purpose as I understand it. These 
were put in by Senator Edwards of Guilford County and I 
couldn’t testify as to what his purpose was. I can tell you 
what I think the amendment does.

MR. WAGGONER: Objection, move to strike.

Q Would you tell us what you think the amendment does?

MR. WAGGONER: Objection.

A Yes. It appears to me and as I recall it, the amendment is to 
cover the cases where you have a vocational school or a 
school for handicapped children, something of that nature, 
where you might have one in the entire community that 
this particular class of children would be assigned to and I 
believe that is why the Senator introduced this amendment.

MR. WAGGONER: Move to strike.

Q Now, you notice the last phrase in the amendment which 
reads “ or for any other reason which the board of education 
in its sole discretion deems sufficient” .

A Yes.

Q Would you tell us what you understand that provision to 
mean?

M R . W A G G O N E R : O b jection .



84

A I understand it to mean just what it says. If the Board of 
Education in its discretion feels a transfer or reassignment 
is required that such would be allowed.

M R. WAGGONER: Move to strike.

Q And the statute would not apply in that instance?

A The statute would apply but it would not prohibit such 
actions.

MR. WAGGONER: Move to strike.

Q Would you consider this an absolute discretion of the School 
Board?

M R. WAGGONER: Objection.

A What I would consider it really, I think, is meaningless. 
It ’s what it says it is. M y consideration of it would be a legal 
conclusion that I don’t feel qualified to give.

Q Well, when you voted for the bill, what were your im­
pressions at that time of the meaning of that provision?

M R. WAGGONER: Objection.

A M y impression at that time was that it says just what it says 
right now, or for any other reason which the board of educa­
tion in its sole discretion deems sufficient.

MR. WAGGONER: Move to strike.

Q Would this permit a Board in desegregating the schools to 
make assignments that considered race and to transport 
pupils in order to desegregate schools?

MR. WAGGONER: Objection.

A Would you read that question back, please?

(The Court Reporter reads the question on Page 10, Line 
23.)

M R . W A G G O N E R : O b jection .



85

A I do not feel qualified to state a conclusion of law as to what 
this would or would not permit any Board of Education to 
do. This is a matter for the State or Federal Courts to deter­
mine and not for me to say.

Q We’re trying to get something about the legislative history 
of the bill and we were interested in your impressions at 
that time what the meaning of the provision was. I under­
stand that when the bill came back to the House you spoke 
in favor of the bill including the amendments. Would you 
give us your opinion, as you understood it at that time, 
whether this provision would permit a Board to desegregate 
the schools and to consider race in doing so?

MR. WAGGONER: Objection.
A In my opinion, and it’s only my opinion, when the bill came 

back before the House it was not debated as to the amend­
ments; that as the introducer of the bill I had one of two 
courses available. I could either move that we concur in the 
Senate amendment, in which event the bill would become 
ratified, or move that we do not concur in the Senate amend­
ment, in which case a conference committee would be set 
up and the bill sent to the conference committee. I did move 
that the House concur in the Senate amendments. As best I 
recall, there was no debate on that motion and it passed 
unanimously. The opinion I had at the time that the bill 
came back to the Senate, the Board of Education would be 
allowed a great deal of latitude in assigning or reassigning 
students and giving them the sole discretion as to what 
would or would not be sufficient. It would appear to me 
there would be numerous instances where if the Board felt 
that such reassignment were required it would be allowed to 
do so.

MR. WAGGONER: Move to strike.
Q Would you look again at Plaintiff’s Exhibit 2. The first news 

article there attempts to give the purpose of the bill, to pre­
serve the neighborhood school concept, and it says also,



86

“ Carson introduced the bill several weeks ago in the wake 
of a federal court ruling that ordered more integration of 
Charlotte-Mecklenburg schools.”  Would that be a correct 
statement?

MR. WAGGONER: Objection.

A I am not prepared to state whether or not a newspaper 
article from some paper not identified by some reporter that 
I do not know is correct or incorrect. I have testified as to 
the date that the bill was introduced. I said I had no reason 
to believe it was other than May 7th. I do not recall the date 
of any particular court ruling in Mecklenburg County and 
I think that the record will have to be considered to see 
whether it was before or after. As to the term “ the wake of” , 
I think that’s meaningless. I think following or prior to 
would be a more accurate description.

Q The next paragraph reads: “ At that time it was feared that 
students would have to be bused out of their districts to 
obey the court order.” Would that be a correct statement of 
your consideration at the time that you introduced the bill?

MR. WAGGONER: Objection.
A M y consideration as to what was “ it was feared”  would be 

nothing. I  don’t even know particularly what “ it” means. 
Certainly the possibility of busing was foremost in my mind 
but as to whether or not this particular article is correct, 
I  have no way of knowing.

MR. WAGGONER: Move to strike.
Q Was not this possibility suggested in the April 23 order of 

the Court in this case?
A I believe the possibility has been suggested on numerous 

occasions both before and after April or May and I think it 
had been coming or the possibility had been forthcoming 
for a long time, I ’d say probably— I don’t know— a year or 
so or more.

Q You do know there was quite some concern at that time in



87

Mecklenburg County about the order of the Court, the 
April 23 order.

A There has been a great deal of concern in Mecklenburg 
County throughout the matter both before and after April 
of ’69.

Q And was it not foremost in your mind at the time you in­
troduced the bill?

MR. WAGGONER: Objection.

A The concern of the people of Mecklenburg County and the 
State of North Carolina has always been foremost in my 
mind in introducing any bill.

AIR. WAGGONER: Alotion to strike.

Q Would you turn to the second page of Plaintiff’s Exhibit 2. 
By the way, the first page is an article from the Charlotte 
News. The second page is an article from the Charlotte 
Observer.

A Yes, I'm referring to it now.

Q Is that a correct report of the House consideration on the 
date indicated?

MR. WAGGONER: Objection.

A I have no way of knowing to my personal knowledge wheth­
er it’s a correct report of the House consideration or not.

Q Would you turn to the third page?

A Yes, I ’m referring to the third page.

Q That is an article from the Charlotte Observer dated June 
18, 1969. Would you look at that article?

A Yes, I ’m referring to it.
Q Would you look at the last column on that page?

AIR. WAGGONER: Let me get through the thing. 
MR. CHAMBERS: OK.



88

A Yes, I have read the final column.
Q Are the quotations there correct?
A Which particular quotations are you referring to?
Q The first quotation is, “Carson replied that Charlotte- 

Mecklenburg’s board was “very interested” in the bill and 
that he thought “others” would be.”

A Yes, I’m confident that the Charlotte-Mecklenburg Board 
would be very interested in the bill and others would be, too.

Q Did you make the statement?
A I don’t recall.
Q Would the second quotation there coming from Representa­

tive Fred Mills be correct?
MR. WAGGONER: Objection, hearsay.

A I don’t recall.
Q Look down, the report shows a question asked you by Rep. 

Arthur H. Jones of Mecklenburg regarding any possible con­
flict between the bill and the decision of the Court should 
that become law. WTould the quotation there coming from 
you be correct?

A Not completely, no. There could be a conflict or there could 
not be, depending on what the Local Board decided to do.

Q Do you recall whether you said: “Well, of course, I see a 
a conflict. If there were no conflict I don’t think there would 
be any need for the bill.”

MR. WAGGONER: Objection.
A I don’t recall whether I said it or not. I don’t deny it, I just 

don’t recall it.
Q You might have said it?
A Yes.
Q You said that there might be . . .



89

Q There might not be a conflict depending on what the Board 
decided to do.

A Yes.

M R . W A G G O N E R : O b jection .

MR. WAGGONER: Objection.
Q Will you explain that?
A I’ll explain it as I think I do now because I don’t have a 

recollection of what I thought at this particular moment. I 
think there would be a conflict if the Board were to decide 
to involuntarily bus students for the sole purpose of achiev­
ing a racial balance.

Q Even with the provision in the act that the Board could do 
anything within its discretion?

MR. WAGGONER: Objection.
A This again calls for a conclusion of law. I don’t necessarily 

think there would be a conflict. There may be one. If the 
Board took the position that education in Mecklenburg 
County would suffer and the public school system would 
suffer but they still wanted to provide transportation for 
the sole purpose of achieving a racial balance, I don’t think 
the Board would be allowed to do this.

MR. WAGGONER: Motion to strike.
Q Mr. Carson, would you tell us in your opinion your differ­

ence between achieving a racial balance and desegregating 
the schools?

MR. WAGGONER: Objection.
A I think achieving a racial balance would be much easier of 

the two to define. I think a racial balance in Mecklenburg 
County would be roughly 70-30 in each school within the 
county. As far as ending desegregation goes, this, of course, 
is a most difficult question that I am not competent to



90

answer and I don’t know of anyone who is. The Court de­
cisions have been, to me at least, very ambiguous as to what 
must be done to end segregation. Whether or not it means 
assigning all pupils without regard to race, creed, color or 
national origin or whether it goes further to mean that 
race, creed, color and national origin must be considered to 
achieve a mixture of race as far as practical, I just would 
not feel competent to answer that question.

MR. WAGGONER: Motion to strike.
Q Would you look at the next page, which is an article from 

the Charlotte Observer dated June 26, 1969.

A Yes, I am referring to that now.
Q Do you recall seeing this article in the paper?
A No, I don’t recall seeing this article in the paper.
Q Were you in court in the hearing of this case in August of 

1969 when the Court considered the Board’s plan that was 
subsequently approved for the 1969-70 school year?

A I don’t recall. I have been at the hearings on two or three 
occasions for relatively short period of time.

Q Are you familiar with the Board’s plan for 1969-70 that pro­
vides for reassignment of Negro students from the inner-city 
schools to white schools?

A You mean the closing of the six or seven schools?

Q Yes.
A Yes, I am vaguely familiar with it. I have not read it myself 

but I have followed it in the newspapers and through the 
other media.

Q Are you familiar with the provision of the plan that pro­
vided for reassignment of Negro students from overcrowded 
Negro schools in the inner-city?

A I know that some schools had been closed in the inner-city.



,91

I did not know some were overcrowded and portions of the 
pupils from the overcrowded schools were transferred out, 
no.

Q Are you familiar with the provision of the plan that pro­
vided transportation for the Negro students to attend the 
white schools?

A Yes.
Q Do you recall comments by counsel for the School Board at 

that time about the provision of the statute that authorized 
the Board to make a reassignment in its discretion?

M R. WAGGONER: Objection.

A I don’t recall the comment.
Q Did you consider the reassignment of the Negro students for 

1969 and the transportation being provided for them a vio­
lation of the bill?

MR. WAGGONER: I object. The witness stated he 
really hasn’t read the plan and doesn’t know what 
it did.

A No, I do not think it would be a violation of the bill. I think 
the overcrowded portions of it would be certainly within 
the discretion of the School Board and would be specifically 
covered by the act. As for the other part, as far as I know 
the reassignment and transportation was on a voluntary 
basis and the School Board allowed children who did not 
wish to be transported to the outer portions of the city to be 
reassigned to the school closest to their home. And certainly 
providing transportation for the pupils in the inner-city who 
wanted to be transported outside would not be prohibited by 
the bill.

Q That’s the voluntary nature of the bill?
A Yes.
Q Now, the Bill prohibits involuntary transportation. Would 

you define or tell us what you meant by involuntary?



92

A Yes. The involuntary would refer to the pupils and to their 
parents or guardians.

Q They would be the ones who would make the decision?
A Yes, as to whether or not they wanted to attend a school 

near their home or whether they wanted to be transported 
to another locality.

MR. WAGGONER: Motion to strike.
Q Would that present some conflict with the other provision 

of the bill that permitted the Board to assign students with­
in its discretion?

A No, I don’t think that would present any conflict.
Q If the Board decided to assign students and the students 

objected, would such assignments be in violation of the act?
MR. WAGGONER: Objection.

A That would depend on a great many circumstances and also 
would require a conclusion of law from me. I would have to 
say that under certain circumstances it might and under 
others it might not.

Q Would you define some of those circumstances that it might?
MR. WAGGONER: Objection.

A That it might be a possible conflict?
Q Yes.
A Yes. As I said, if the School Board decided that they were 

going to transport pupils merely to achieve a racial balance 
and that education of any of the students would not be im­
proved but that the School Board felt they had to have such 
a balance anyway, I think that this would be a conflict.

MR. WAGGONER: Motion to strike.
Q Will you define some of the exceptions where it would not 

be a conflict?

M R . W A G G O N E R : O b jection .



93

A Yes. I think if you had a school that was overcrowded or if 
you had a school that were damaged by fire and the Board 
felt that the pupils should be assigned to another school, 
either on a temporary or more than a temporary basis in 
the case of overcrowding, I think it clearly would not be, 
whether or not the pupils wanted to go.

M R. WAGGONER: Motion to strike.

Q Suppose you had a segregated school and the Board had to 
reassign in order to desegregate the school?

M R. WAGGONER: Objection.

A Well, this gets into another difficult question. When you say 
the Board had to reassign to desegregate, if the constitution 
requires such an assignment, of course not. If the constitu­
tion does not require such an assignment, yes, it would.

M R. WAGGONER: Motion to strike.

Q We discussed this bill previously, looking forward to secur­
ing an affidavit from you and you made a statement at that 
time that you considered the altering of school boundaries 
and the pairing of schools for the sole purpose of creating 
a racial balance to be in violation of the act, but the altering 
of school districts, the pairing of schools and other methods 
designed to eliminate the effects of past racial discrimina­
tion would not necessarily be.

MR. WAGGONER: Objection.

A Yes, that’s correct.

M R. WAGGONER: Motion to strike. May I have
a copy of the affidavit?

M R. CHAMBERS: It’s not an affidavit.

M R. WAGGONER: Well, it’s a document.

MR. CHAMBERS: You may.

M R . W A G G O N E R ; O b jection .



94

Q You also stated at that time that you considered the determ­
ination of involuntary to be that of the school children and 
their parents.

A Yes.

AIR. WAGGONER: Objection.

Q You also stated at that time that the bill was amended in 
the Senate to vest the discretion in the Local Board to make 
alterations in the method of assigning pupils discretionary?

AIR. WAGGONER: Objection.

A Yes.

AIR. WAGGONER: Alotion to strike.
A Within limits.

Q What limits?
AIR. WAGGONER: Objection.

A Well, the ones that we have just mentioned.

Q You also made a statement at that time that you did not 
consider the discretion vested in the Board to be absolute 
but that some reason must be given, such as a finding that 
racial balance in the school would promote the educational 
program or that the constitution requires racial balance in 
the schools.

AIR. WAGGONER: Objection.
A Yes.

Q Is that correct?

A Yes.

AIR. WAGGONER: Alotion to strike.
Q You made a statement at that time that you did not think 

that the act would cover the situation where a school was 
converted from certain grade levels to other grade levels and 
students residing near the school would be required to be



95

transported to other schools serving their grade levels except 
where the distance involved would be extensive and/or 
there would be other schools in between the schools to which 
the students were being transported.

M R. WAGGONER: Objection.

A Yes, that’s correct. I don’t think this particular act applies 
to that.

MR. WAGGONER: Motion to strike.

Q You also made a statement that in your opinion the act 
would limit the kinds of plan or approaches that a School 
Board might follow in seeking to create a racial balance.

MR. WAGGONER: Objection.

A Yes, that’s right.

AIR. WAGGONER: Motion to strike.

Q You stated that in your opinion a requirement that there be 
a racial balance of students in each school in the system 
which also requires transportation would be violative of the 
act.

M R. WAGGONER: Objection.

A Would you read that question back, please?

(The Court Reporters reads the question on Line 7 above.)

A Yes, that’s correct.

Q You stated that in your opinion the pairing of schools or 
redrawing of attendance lines to achieve a racial balance 
whether or not transportation of students is required would 
be a violation of the act.

MR. WAGGONER: Objection.

A Yes, to achieve a racial balance.

M R. WAGGONER: Motion to strike.



96

A But not to create a unitary school system.

Q To create a unitary school system, then, even though trans­
portation is provided, would not be a violation of the act?

M R. WAGGONER: Objection.

A Not necessarily, no.

M R. WAGGONER: Motion to strike.

Q The April 23 order of the Court authorized the School Board 
to consider many means for desegregation including trans­
portation. In your opinion would this bill limit the kinds of 
considerations that a Board might employ to desegregate 
schools?

MR. WAGGONER: Objection on incompetence and
to the forum.

A Not necessarily. Certainly some types of transportation 
would not be affected at all by the bill. For example, if the 
Board decided all inner-city students should be given an 
option of attending the perimeter schools if they desired and 
provided transportation for them, it certainly would not.

M R. WAGGONER: Motion to strike.

Q Would there be some limitations placed, however, on the 
methods that a Board might utilize in desegregating schools?

MR. WAGGONER: Objection.

A There would be some limits placed on it, yes.
M R. WAGGONER: Motion to strike.

Q Would you tell us what those limitations would be or some 
of them might be?

A Yes. An obvious limitation would be the transportation of 
students across town for the sole purpose of achieving a 
racial balance.

Q Are you familiar with the plan that was directed by the 
Court on February 5, 1970?



97

A Vaguely familiar with it, yes.

Q Would the bill prevent implementation of that plan?

MR. WAGGONER: Objection.

A I would want to know specifically what in the plan you 
would be talking about before I could answer that.

Q Would it prevent the clustering of schools and the trans­
portation of pupils as the Court directed?

MR. WAGGONER: Objection.

A If it were for the sole purpose of achieving a racial balance, 
Yes, I think it would.

MR. WAGGONER: Motion to strike.

Q W ell, as you presently understand the plan, you’re familiar 
with the clustering of schools directed by the Court, are 
you not?

A Yes.

Q And the pairing and the transportation provisions also.

A Yes.
Q In your opinion does this bill prohibit the Board from im­

plementing that plan?
MR. WAGGONER: Objection.

A AYs. In my opinion . . . well, the entire plan, yes, I do think 
it would prohibit it, certain portions of it.

MR. WAGGONER: Motion to strike.
Q Would those portions be the clustering of schools and the 

transportation of the pupils in the thirty-four schools in­
volved?

M R. WAGGONER: Objection.
A Just so I know exactly what you’re talking about, tell me 

what you mean by clustering of schools as opposed to pair­
ing.



98

A I guess we’re talking about the same thing in clustering and 
pairing. You’re familiar that the order requires that thirty- 
four schools be paired, ten black and twenty-four white.

A Yes.

Q And provides that transportation be provided for students 
reassigned for the purpose of desegregating those schools.

A Yes.

Q Now, would the bill prohibit implementation of that order?

MR. WAGGONER: Objection.

A Yes, in my opinion it would to the extent that the order 
is written.

Q Now, the April 23 order includes the following: “ Neighbor­
hood” in Charlotte tends to be a group of homes generally 
similar in race and income. Location of schools in Charlotte 
has followed the local pattern of residential development, 
including its de facto patterns of segregation. With a few 
significant exceptions, such as Olympic High School (about 
1/3 black) and Randolph Road Junior High School (233 
black), the schools which have been built recently have 
been black or almost completely black, or white or almost 
completely white, and this probability was apparent and 
predictable when the schools were built. Specific instances 
include Albemarle Road Elementary (99 + white); Beverly 
Woods (100% white); Bruns Avenue (99% + black); Hid­
den Valley (100% white) ; Olde Providence (98% white); 
Westerly Hills (100% white); Albemarle Road Junior High 
(93% white).”  Then the Court writes on about the distance 
people drive to work and to church and to football games 
and other affairs. Now, to desegregate these recently built 
schools would the act prohibit the Board from making as­
signments, assigning blacks to all white schools and whites 
to all black schools and providing transportation?

MR. WAGGONER: Objection.



99

A Now, specifically your question is whether or not, without 
considering all the figures you read out of which I have no 
personal knowledge but I assume to be correct, the Board 
would be prohibited from assigning children to achieve a 
racial balance, is that correct?

Q Well, if the schools were all white and the Board wanted to 
desegregate those schools by assigning some black kids to 
those schools and providing transportation, would the act 
prohibit the Board from doing this?

MR. WAGGONER: Objection.
A I would find that very difficult to answer. If you had a par­

ticular situation where, for instance, a particular school dis­
trict were gerrymandered to include all the pupils of a cer­
tain race or to exclude pupils of a certain race, I  would say 
clearly no, they could be redrawn and should be redrawn. 
But on the other hand, if you’re going to transport pupils 
from one section of town to a distant section of town and 
at the same time have cross transportation for the sole pur­
pose of achieving a racial balance, then I would say yes, 
that it would.

MR. WAGGONER: Motion to strike.

MR. CHAMBERS: I have nothing further.

BY MR. WAGGONER:
Q Mr. Carson, there were other sponsors of this bill with you, 

is this correct?

A That’s correct.

Q Who were they?
A Rep. Johnson of Cabarrus County and Rep. Hegge of David­

son County.
Q You’re not familiar with their intent insofar as the proposed 

bill is concerned, are you?

A Well, their intent, I would say, would be the same as mine



100

and the same as the other members of the General Assembly 
who gave it overwhelming approval.

Q How many members are there of the General Assembly?

A 170, 120 in the House and 50 in the Senate.

Q Are these gentlemen in a position to pass on the coverage of 
this bill with respect to the specific facts in Mecklenburg 
County?

A No. I would say very few would be very familiar with Meck­
lenburg County. They’re from, of course, all across the State.

Q Do you know who proposed the amendments to the bill that 
you originally proposed?

A The Senate amendments?

Q Yes.

A Yes, I do. Senator Edwards of Guilford County.

Q Do you know his intent?

A Well, I think he thought it would make it a more workable 
and better bill if it were amended. One or two of the pro­
visions were grammatical in nature.

M R. WAGGONER: I have nothing further.

MR. CHAMBERS: Thank you very much. 
************

CERTIFICATE

I, Evelyn S. Berger, Notary Public/Reporter, do hereby 
certify that James H. Carson, Jr., was duly sworn by me prior 
to the taking of the foregoing deposition; that said deposition 
was taken and transcribed by me; and that the foregoing 30 
pages constitute a true, complete and accurate transcript of 
the testimony of the said witness. I further certify that the 
persons were present as stated in the caption.

I further certify that I am not of counsel for, or in the em­



101

ployment of any of the parties to this action, nor am I interest­
ed in the results of this action.

In witness whereof, I have hereunto subscribed my name this 
12th day of March, 1970.

Evelyn S. Berger 
Notary Public in and for 
County of Mecklenburg- 
State of North Carolina

GENERAL ASSEMBLY 

AM ENDM ENT

D ate_________________  By: --------------------------

COMMITTEE SUBSTITUTE OF

Amend S. B . _____________H. B. 990
Adopted June 24

(1) Page 1, Lines 14 and 15
by striking the balance of the sentence after the word 
“ various” and re-writing it as follows: “ races, creeds, colors
or national origins from the community.”

(2) Page 1, Line 18
by changing the period after the word “ districts” to a 
semicolon, and adding the following: “ provided, however, 
that the board of education of an administrative unit may 
assign any pupil to a school outside of such attendance 
district or zone in order that such pupil may attend a 
school of a specialized kind including but not limited to a 
vocational school or school operated for, or operating pro­
grams for, pupils mentally or physically handicapped, or 
for any other reason which the board of education in its



102

sole discretion deems sufficient.

(3) Page 2, Line 8
by striking the words “ not to any” and inserting in lieu 
thereof the following: “ nor to any assignment or”

(4) Page 2, Line 10
between the word “ require” and “ reassignment”  insert 
the words “ assignment or”

(5) Page 2, Line 13
by removing the period and quotation marks after the 
word “ pupil” and adding the following: “ or to any assign­
ment made pursuant to a choice made by any pupil who is 
eligible to make such choice pursuant to the provisions of 
a freedom of choice plan voluntarily adopted by the board 
of education of an administrative unit.”

Signed EDWARDS

SESSION 1969 

Introduced by:

Representatives Carson, J. Johnson, and Hege 

COMMITTEE SUBSTITUTE TO H. B. 990 

Referred to:

A BILL TO BE ENTITLED

AN ACT TO PROTECT THE NEIGHBORHOOD SCHOOL 
SYSTEM AND TO PROHIBIT THE INVOLUNTARY 
BUSSING OF PUPILS OUTSIDE THE DISTRICT IN 
WHICH THEY RESIDE.

The General Assembly of North Carolina do enact:

Section  1. T here is h ereby  created a new  Section  o f C hapter



103

115 of the General Statutes to be codified as G.S. 115-176.1 and 
to read as follows:

“ G.S. 115-176.1. Assignment of pupils based on race, creed, 
color or national origin prohibited. No person shall be refused 
admission into or be excluded from any public school in this 
State on account of race, creed, color or national origin. No 
school attendance district or zone shall be drawn for the pur­
pose of segregating persons of various race, creed, color or 
national origin from the community.

Where administrative units have divided the geographic area 
into attendance districts or zones, pupils shall be assigned to 
schools within such attendance districts. No student shall be 
assigned or compelled to attend any school on account of race, 
creed, color or national origin, or for the purpose of creating a 
balance or ratio of race, religion or national origins. Involuntary 
bussing of students in contravention of this x\rti.cle is prohibit­
ed, and public funds shall not be used for any such bussing.

The provisions of this Article shall not apply to a temporary 
assignment due to the unsuitability of a school for its intended 
purpose nor to any transfer necessitated by overcrowded con­
ditions or other circumstances which, in the sole discretion of 
the School Board, require reassignment.

The provisions of this Article shall not apply to an applica­
tion for the assignment or re-assignment by the parent, guar­
dian or person standing in loco parentis of any pupil.”

Sec. 2. All laws and clauses of laws in conflict with this Act 
are hereby repealed.

Sec. 3. If part of the Act is held to be in violation of the Con­
stitution of the United States of North Carolina, such part shall 
be severed and the remainder shall remain in full force and 
effect.

Sec. 4. This Act shall be in full force and effect upon its 
ratification.



104

GENERAL ASSEMBLY 

AM ENDM ENT

Date 16 June ’69 By: Carson
Amend S. B. _____________H. B. 990

By adding a new paragraph on page two; line 14, following 
the word “ Article” to read as follows:

The provision of this Article shall not apply to a temporary 
assignment of pupils. A temporary assignment shall be one for 
less than the school year resulting from conditions which temp­
orarily render a school unacceptable.

House adopted 6/16/69 

Signed JAMES H. CARSON, JR.

NORTH CAROLINA 

GENERAL ASSEMBLY 

1969 SESSION 

HOUSE BILL DRH  255

Sponsors:

Representative Carson, J. Johnson, Hege 

Referred to:
A BILL TO BE ENTITLED

AN ACT TO PROTECT THE NEIGHBORHOOD SCHOOL 
SYSTEM AND TO PROHIBIT THE INVOLUNTARY 
BUSSING OF PUPILS OUTSIDE THE DISTRICT IN 
WHICH THEY RESIDE.

The General Assembly of North Carolina do enact:

Section  1. T here is hereby created  a new  Section o f  C hapter



105

115 of the General Statutes to be codified as G.S. 115-183.1 
and to read as follows:

“ G.S. 115-183.1. Pupil assignment within neighborhood; in­
voluntary bussing prohibited. Notwithstanding any provisions 
of this or other Chapters, no pupil shall be assigned to a school 
outside the district in which he resides except upon the applica­
tion of his parent, guardian, or person standing in loco parentis 
as hereinbefore provided.

Pupils residing within a district where two or more schools 
are located shall be assigned to the school which is closest to 
their place of residence unless application to attend elsewhere 
is made by the parent, guardian, or person standing in loco 
parentis. Applications for assignments outside the pupils’ school 
district or to a school further from the pupils’ residence than 
another school within the district shall be determined by the 
city or county board as hereinbefore set forth.

The city or county board may, in its discretion and subject 
to provisions as hereinbefore set forth, provide transportation 
for pupils assigned either within or without the district. Provid­
ed, however, students shall not be bussed or transported outside 
their respective districts or to a school more distant from their 
residences than another school within the district except in 
cases where the parent, guardian, or person standing in loco 
parentis has requested such assignment as hereinbefore set 
forth. Public funds, whether from taxation or any other source, 
shall not be used to provide transportation for pupils assigned 
in contravention of this Article.”

Sec. 2. All laws and clauses of laws in conflict with this Act 
are hereby repealed.

Sec. 3. If part of the Act is held to be in violation of the 
Constitution of the United States or North Carolina, such part 
shall be severed and the remainder shall remain in full force 
and effect.

Sec. 4. This Act shall be in full force and effect upon its rati­
fication.



106

HOUSE GETS BUSING BILL

RALEIGH—Rep. James H. Carson’s bill to prohibit arbi­
trary busing of students to create racial balances in schools 
comes up for floor action today in the House.

The bill has been given a favorable report by the House 
Judiciary Committee.

Carson’s bill seeks to preserve “ neighborhood school”  concept 
which means students will be assigned to schools nearest their 
homes.

Carson introduced the bill several weeks ago in the wake of 
a federal court ruling that ordered more integration of Char- 
lotte-Mecklenburg schools.

At that time it was feared that students would have to be 
bused out of their districts to obey the court order.

Carson’s bill prohibits the involuntary busing of students 
outside their school districts. But it does not prohibit busing 
students if they desire it.

ANTI-BUSING BILL GETS HOUSE OK 

By JERRY ADAMS 

Observer Raleigh Bureau

RALEIGH— Mecklenburg Rep. James H. Carson’s bill that 
would prevent the busing of school children without parental 
consent passed its second reading in the N.C. House Monday 
night.

Rep. Henry E. Frye of Guilford County requested that the 
bill’s final reading be delayed until today. Only one member 
need request that a bill not receive its second and third reading 
the same day.

The bill provides that a child must be assigned to the school



107

nearest his home unless parents consent to his assignment to 
another school.

Before explaining his bill, Carson added an amendment that 
would allow busing of a child “ under temporary conditions” for 
less than a school year if, for instance, the originally assigned 
school burned down.

Carson has explained that the constitutionality of busing has 
never been tested in the courts, although the idea has been an 
emotional issue for years and has been suggested by the courts 
as one means of fostering desegregation.

The New York legislature has passed a similar law.

Frye, the only objector during brief debate over the bill, con­
tended that the bill “ doesn’t give any discretion at all to the 
(local) board.”

Frye suggested that if the Assembly wanted to express its 
wishes to local boards of education it would be better advised to 
pass a resolution— without the force of law. Frye also said that 
some districts in the state were not rigidly defined and that 
confusion could result from such a law.

‘NO BUSING’ BILL ROUSES CRITICS 

By JERRY ADAMS 

Observer Raleigh Bureau

RALEIGH— Opposition erupted in the House Tuesday to 
Mecklenburg Rep. James II. Carson’s bill to prohibit involun­
tary busing of public school children.

The bill was detered from final passage and will be reconsid­
ered today.

Opposition came from several quarters on the floor of the



108

House Tuesday although the bill was passed in its second read­
ing Monday night after only Rep. Henry E. Frye of Guilford 
opposed it. Frye delayed the final vote until Tuesday when it 
looked Monday night as though the bill was headed for over­
whelming approval by voice vote.

“ Some people (the opposers) have had a chance to look at 
it,”  Frye said after Tuesday’s session, during which he did not 
speak. “ Things were going so well I thought I ’d just stay out of 
it,” he said.

The bill would prevent a school board from busing a child 
without his parents’ approval to a school other than that near­
est his home.

Busing is a crucial issue in school desegregation, although 
Carson argues that busing has never received a specific court 
test. Frye is the General Assembly’s only Negro member.

Speaking of another local issue in desegregation, Carson said 
on the floor Tuesday that his bill “ has nothing to do with the 
freedom-of-choice plan one way or another.”

But Rep. Neill I. McFadyen of Hoke said the bill would be 
impossible to apply in areas where school attendance districts 
were not precisely drawn.

Saying that he had been chairman of his local school board, 
McFadyen continued:

“ If we tell the boards at home exactly what to do, I  don’t see 
why we need these local boards.”

Local boards “ should have some right to have some freedom 
of choice,” too, McFadyen said.

Rep. Ernest B. Messer of Haywood objected that “ shift­
ing population” in a city or county would require that local 
boards be able to use their own discretion about transferring 
pupils.

Carson hastily offered an amendment that would suspend



109

the law in a case where a school building were damaged or 
where overcrowding required “ temporary” busing.

But Messer was still not satisfied.

“ I think it is wrong and I think it will create some stumbling 
blocks throughout this state that we won’t realize until we 
come up against them,” Messer said.

Rep. Ike F. Andrews of Chatham asked if local boards “had 
requested for even approved this bill?”

Carson replied that Charlotte-Mecklenburg’s board was 
“ very interested” in the bill and that he thought “ others” 
would be.

Rep. Fred M. Mills Jr. of Anson asked, “Mr. Carson, really 
don’t you want this to apply to just Mecklenburg County?”

Mecklenburg’s board is currently locked in a fight with the 
federal district court, which has offered busing as one solution 
to a de facto segregated situation that the court says must be 
resolved.

Mills also raised the question of a parent who might not 
“ even admit” his child needed special education classes for 
which busing might be necessary.

And Rep. Arthur M. Jones of Mecklenburg asked Carson 
if he could “ see any possible conflict with the bill— should it 
become law— and the current situation with the courts in 
Charlotte-Mecklenburg ? ”

Carson responded, “ Well, of course, I see a conflict.

“ If there were no conflict I don’t think there would be any 
need for the bill.”

Carson said the state attorney general’s office had told him 
the bill was constitutional, “ but could be applied unconsti­
tutionally.”

When Carson’s attempts at amending the bill showed no



110

signs of mollifying critics, he asked that the bill be reconsidered 
today.

After the session, obviously delighted with his new-found 
support in opposition to the bill, Frye said that the bill runs 
counter to the “ trend” of this General Assembly in giving more 
power to local government.

CARSON’S REW RITTEN ANTIBUSING 

BILL PASSES IN HOUSE VOICE VOTE 

Observer Raleigh Bureau

RALEIGH— Mecklenburg Rep. James H. Carson’s bill to 
prohibit busing of school children without parental consent won 
final approval in the House of Representatives Wednesday and 
now moves to the Senate.

The bill, which locks legal horns wtih a desegregation case in 
Charlotte-Mecklenburg, was passed in a form substantially re­
written from the original.

Rep. Henry E. Frye of Guilford, the General Assembly’s only 
Negro and the member who first opposed the bill, was not 
present for the vote Wednesday.

Other House members who had questioned whether the bill 
restricted local school boards too much, also were silent, and 
the bill passed by an overwhelming voice vote.

The bill prohibits busing of children across attendance- 
district lines to establish racial “ balances or ratios” in any 
school. The bill also prohibits the use of busing to segregate 
by race.

Drawn along the lines of a recently passed New York law, 
the bill conforms to guidelines established by the U.S. Depart­
ment of Health, Education and Welfare, Carson said.



I l l

“ In my opinion, the bill probably is constitutional, but it 
may not be,”  Carson said.

Federal Judge James B. MacMillan has suggested busing as 
a means of further desegregating Charlotte-Mecklenburg 
schools. The schools now are under court order to come up 
with a plan that will further desegregate, but are in the process 
of fighting that order in the courts.

Carson cited a Jaycee poll from Charlotte that showed 94.8 
per cent of 1,033 persons answering to “ favor neighborhood 
schools.”

Black people and white people want neighborhood schools, 
Carson argued. He was the only one to speak on the bill.

“ I don’t know what the courts will do, but we can state that 
the policy of this state is against segregation.

“ And it’s against involuntary busing of students.”

LAW FIRM  PLANS TEST 

OF ANTIBUSING LAW 

By NANCY DRACHEY 

Observer Staff Writer

A Charlotte law firm said Wednesday it will seek a consti­
tutionality test of the new antibusing law.

The antibusing law, sponsored by Mecklenburg Rep. James 
H. Carson, received final approval in the N.C. House Wednes­
day, the last day of the General Assembly session.

The new law prohibits busing for purposes of integration or 
segregation, requiring a school board to assign children to the 
school closest to their homes.



112

Adam Stein, a partner of civil rights lawyer Julius I. Cham­
bers, said their firm would ask the U.S. District Court here to 
determine the new law’s constitutionality.

Normally, the constitutionality of state laws is argued be­
fore a court of three federal judges.

Chambers and his firm have represented the Negro parents 
and teachers who brought the Charlotte-Mecklenburg school 
desegregation case before the federal court here.

The new law, titled “ To Protect The Neighborhood School 
System,” would virtually assure some all-Negro and all-white 
schools since neighborhoods are segregated.

School Board attorneys Brock Barkley and William J. Wag­
goner have said the law would have to be obeyed unless it was 
stricken down in federal court.

Barkley told board members he thought the law was un­
constitutional and would be tossed out if tested in federal 
court.

The antibusing law was approved in the Senate on Tuesday 
after earlier approval in the House. The Senate tacked on a 
technical amendment which the House approved Wednesday.

CIVIL RIGHTS LAWYERS 

W ILL TEST BUSING LAW 

By KAY REIM LER 

News Staff Writer

Charlotte civil rights attorneys plan to take the newly passed 
state law forbidding involuntary busing to court to try to have 
it declared unconstitutional.

The law, sponsored by Mecklenburg Rep. James H. Carson



113

Jr., prohibits busing of children to school to promote segrega­
tion or desegregation and requires the assignment of a child 
to the school nearest his home.

J. LeVonne Chambers, the attorney who brought the de­
segregation suit against the School Board, told The News today 
that his office will test the law in the court.

CHAMBERS said he has “ no idea” when the case might 
come up.

The case, he said, will be heard before a panel of three fed­
eral judges, not necessarily from North Carolina, appointed by 
the chief judge of the U.S. Fourth Circuit Court.

That court is in recess until September, the attorney said, 
adding that he doesn’t know if the three-judge panel could be 
appointed before September.

The law as it stands could have an effect on any desegrega­
tion plan the Charlotte-Meeklenburg School Board might de­
vise.

School attorneys agree that the board must abide by the law 
until the measure is stricken down in court.

Chambers told The News that a number of similar state laws 
were struck down by the courts during the late 1950’s and 
early 1960’s because they obstructed the desegregation of 
schools.

If all school children in the Charlotte-Meeklenburg system 
attend the school closest to their homes, the system would 
retain a number of racially identifiable schools since many 
neighborhoods in the county are segregated.



114

ANTI-BUSING LAW TARGET OF MOTION 

By VIVIAN MONTS 

News Staff Writer

Civil rights attorneys here today asked the federal court to 
override a new state law prohibiting involuntary busing of 
children outside their school districts.

A motion filed this morning by Adam Stein, law partner of 
J. LeVonne Chambers requested an order by Judge James B. 
McMillan which would prohibit the Charlotte-Mecklenburg 
Board of Education from using the law.

The motion was filed in connection with a suit seeking total 
integration of local schools. The court ruled last spring that 
schools here must have more desegregation.

Judge McMillan has not yet ruled on the busing request, but 
has granted an attached request by the attorneys asking that 
the names of the N. C. State Board of Education and Dr. A. 
Craig Phillips, state superintendent of public instruction, be 
added to the list of defendants in the suit.

THE ORIGINAL defendant was the local school board. 
School Board members were added later as individual defen­
dants in the suit.

The state law the civil rights attorneys are seeking to over­
turn provides that “ involuntary busing of students . . .  is pro­
hibited, and public funds shall not be used for any such bus­
ing.”

The attorneys claim the law, passed July 2, forbids the local 
school board from carrying out court orders to comply with 
the school desegregation requirements of the Constitution.

The papers filed this morning state that “ this is so because 
compulsory (pupil) assignments and involuntary busing . . . 
are necessary devices” for complying with court orders for de­
segregation of local schools.



115

Judge McMillan has never required involuntary busing in 
the local school system but stated in an order April 23 that 
“ there is no reason except emotion . . . why school buses can­
not be used by the board to provide the flexibility and economy 
necessary to desegregate the schools.”

The temporary order asked by Stein would be in effect pend­
ing a decision by a three-judge panel as to whether or not the 
state law is constitutional. The civil rights attorneys claim it is 
not.

The attorneys claim that if the local school board is not 
immediately stopped from using the state law, its members will 
fail to comply with Judge McMillan’s orders for the desegrega­
tion of schools here.

The anti-busing law originated in Mecklenburg County. It 
was introduced first in the House of Representatives by Meck­
lenburg Republican Rep. James H. Carson Jr.

School administrators contacted by The News this morning 
disagreed somewhat with Lt. Stroud’s statement on marijuana 
sales in the schools.

“ I question buying on the junior high campus,” said Steven 
D. Wallin, principal at Coulwood Junior High School. “ I 
haven’t seen any here or on any other junior high campus.”

And Thelbert C. Wright, principal at West Mecklenburg 
High School, said that “ If you can buy that stuff in the big 
schools, we certainly don’t know anything about it.”

North Mecklenburg’s assistant principal, B. K. Hurd, re­
acted to Stroud’s statement by saying that “ he (Stroud) knows 
something we don’t know. I wouldn’t be surprised at their 
being able to get it, but to my knowledge as to it being on our 
school grounds and being sold, no.”

The News was able to contact only a few high school ad­
ministrators because of the vacation period.



116

‘NO BUSING’ LAW IS CHALLENGED IN COURT 
By NANCY BRACHEY 

Observer Staff Writer
Civil rights lawyers Tuesday challenged the constitutionality 

of the new N.C. law that prohibits involuntary busing of chil­
dren for racial balance in the schools.

The law also prohibits assignment of school children outside 
their attendance district to achieve a racial balance.

Its purpose, motive and effect;” said the law firm of civil 
rights lawyer Julius L. Chambers, is to prevent school boards in 
the state from complying with federal court orders for de­
segregation in compliance with the U.S. Constitution.

The lawyers asked that the new law be sent to a three-judge 
federal court for a constitutionality test. Pending that decision, 
they asked U.S. District Judge James B. McMillan to grant an 
injunction preventing consideration, application, administra­
tion and enforcement of the new law.

Chambers’ firm filed the complaint in connection with the 
Charlotte-Mecklenburg school desegregation case, which is be­
fore McMillan.

The civil rights lawyers contended that “ involuntary busing 
and pupil assignment” prohibited by the law are “ necessary 
devices” to carry out existing court orders here and elsewhere 
in N.C. and to comply with constitutional requirements.

They alleged that unless the court prevents it, the Charlotte- 
Mecklenburg School Board will use the law to sidestep M c­
Millan’s court orders of April 23 and June 2 for desegregation 
of local schools.

The board has until Aug. 4 to present its second try at a 
desegregation plan for schools and faculties. The first pupil de­
segregation plan was rejected by the judge June 20.

(McMillan has not told the school board it must transport



117

students. He has said that the school board may use any means 
to accomplish desegregation of Charlotte-Mecklenburg 
schools.)

A number of other school districts in N. C. are also under 
federal court orders to desegregate this fall and next.

Also Tuesday, the N. C. Board of Education and Dr. A. 
Craig Phillips, state superintendent of public instruction, were 
made defendants in the Charlotte-Mecklenbug school desegre­
gation case.

This follows a ruling issued by U. S. District Judge Algernon 
Butler of Raleigh that education officials have a duty in school 
desegregation.

The State, however, has announced an objection to Butler’s 
ruling, and says it will appeal any decision that makes the 
State responsible for school desegregation.

Butler’s order said the State officers share with local units 
the burden to actively seek the desegregation of the public 
schools.

McMILLAN WILL IGNORE NEW ANTIBUSING LAW 

By W ARREN KING 

Observer Staff Writer

A recently enacted N.C. “ antibusing” law apparently has 
little effect on the Charlotte-Mecklenburg School Board’s plan 
to desegregate local schools.

Federal Judge James B. McMillan said Tuesday that a 
temporary restraining order on the law, (which prohibits in­
voluntary busing of school children), was not necessary in con­
sidering the school board’s plan.



118

Civil rights lawyer Julius L. Chambers asked for the order 
during a three-hour U.S. District Court hearing Tuesday on 
the school board’s new desegregation plan which included the 
busing of black students to predominately white schools.

The statute, passed this summer by the General Assembly, 
prohibits busing of a student against his will.

Mecklenburg School Supt. William Self testified he didn’t 
believe the board was influenced by the law in drawing up the 
desegregation plan.

The plan turns primarily on the concept of voluntary busing 
and contains provisions for reassigning students who object to 
being bused.

Self said he felt the busing was proposed for the same reason 
seven black schools would be closed under the plan and their 
students bused to the white schools: “ To afford better educa­
tional opportunities (for Negro students) and prevent over­
crowding (schools that would not be closed under the plan).”

Mecklenburg Rep. James H. Carson Jr., author of the anti­
busing law, said in an interview the board was “ quite proper” 
in ignoring the statute. It was not intended to interfere with 
the board’s desegregation efforts, he said.

The law itself contains numerous exceptions that would al­
low busing, including one nonspecific provision for pupils re­
assignment because of “ other circumstances.”

In explaining the school board’s position in regard to the 
law, attorney Maurice Weinstein said during the hearing that 
the exceptions provided for in the statute “ swallow” it.

Weinstein said the state attorney general’s office had told 
him it would seek to further clarify the law in the near future 
and requested that no action be taken on it during Tuesday’s 
hearing.